Elementary School District and
Lebanon Education Association
This Arbitration arises pursuant to Agreement between LEBANON EDUCATION
ASSOCIATION ("Association") and LEBANON ELEMENTARY SCHOOL DISTRICT
("District"), under which LUELLA E. NELSON was selected to serve as
Arbitrator and under which her Award shall be final and binding upon the
Hearing was held on September 22 and 23, 1992, in Lebanon, Oregon.
The parties were afforded full opportunity for the examination and
cross-examination of witnesses, the introduction of relevant exhibits, and for
argument. Both parties filed
post-hearing briefs on or about October 19, 1992.
On behalf of the Association:
S. Olney, Esquire, Bennett & Hartman, 851 SW 6th, Suite 160, Portland, OR
On behalf of the District:
J. Hungerford, Esquire, Bischof, Hungerford & Witty, 653 South Center
Street, Oregon City, OR 97045.
The parties agreed to the following stipulated issues:
Did the District violate Article 20(A) and/or 20(B)(4) by placing a copy
of a memo dated February 18, 1992, in Dale Kraus' personnel file without
providing her with written notification?
2. Did the District violate Article 13 (Complaint Procedure) when Principal Sherry Steele discussed her concerns about teacher Dale Kraus with the school board during an executive session on March 9, 1992 without following the procedural requirements of Article 13?
Did the District violate any of these sections of Article 12
a. Section 12(B)(1) by failing to conduct her evaluation openly when school district administrators and board members discussed her deficiencies during an executive session?
Section 12(B)(3) by failing to prepare an evaluation in writing for Dale
Kraus during 1991-92?
Section 12(B)(7) by failing to provide a written plan of assistance for
Section 12(B) by failing to follow the evaluation procedures contained in
the Supervision and Evaluation Manual adopted by the school board in June of
4. If the District violated the Agreement in any of the above particulars, what is the remedy?
The Association would propose an additional Issue 2-a, as follows:
Did the District fail to hold a
complaint conference or otherwise process the complaints about Dale Kraus'
communication style (as referred to by Kerry Luber and Sherry Steele) pursuant
to the requirements of Article 13?
District objects to this additional proposed issue and alleges that the
Association did not raise it during the earlier steps of the grievance process.
The parties stipulated that the Arbitrator has the authority to rule on
whether Issue 2-a may be raised after a review of the record of the Level II
hearing on this grievance.
RELEVANT SECTIONS OF AGREEMENT
LEVELS OF GRIEVANCE
Level Three - Binding Arbitration
The arbitrator shall be without power or authority to make any decision
requires the commission of an act prohibited by law or which is violative of the
terms of this Agreement. The
arbitrator shall have no power to substitute his/her discretion for that of the
Board in any manner not specifically contracted away by the Board.....
RIGHTS OF PROFESSIONAL EMPLOYEES
3. This paragraph shall
not apply to the dismissal of a probationary teacher or the nonrenewal of a
probationary teacher's contract, it being the intent of the parties that
dismissals and nonrenewals of probationary teachers shall be governed solely by
the provisions of ORS 342.835.
A. The purpose of the evaluation is to allow the teacher and the District to determine the teacher's development and growth in the teaching profession and to evaluate the performance of the teaching responsibilities.
. B. The procedures for this evaluation shall be as prescribed by the Supervision and Evaluation Manual adopted by the School Boards in June of 1989 and Amendments:
1. All bargaining unit members will be provided with copies of evaluation policies, procedure, criteria and forms. Additional copies will be made available upon request. All teacher evaluations will be done openly. (See attached Memo of Understanding - Appendix C.)
2. A pre-evaluation conference shall be arranged to establish performance goals (targets) based upon job description and performance standards and any other concerns or basis for evaluation the District wishes to consider.
3. All evaluations shall be in writing and, in part, be based upon written criteria which include the performance goals (targets) as well as any other concerns or basis for evaluation the District wishes to consider....
4. A post-evaluation interview shall be mutually scheduled to discuss the results of the evaluation.
5. A copy of written evaluations shall be submitted to the bargaining unit member who will sign the evaluation and return a copy to the administration for placement in the teacher's personnel file. The signature of the teacher is an indication that he/she has read the evaluation.
6. A bargaining unit member may put his/her objections to the written evaluation in writing and have them attached to the evaluation report.
7. If a bargaining unit member is determined by the District to need a written plan of assistance, such shall be given to the teacher and discussed. The plan shall be in writing and shall include, as a minimum:
a. the specific deficiencies;
b. the required corrections that
must take place; and
c. a written timeline for the plan.
A. When a complaint regarding the performance of a teacher is made to an administrator, the complaint shall be discussed with the teacher within ten (10) working days:
-- if the administration intends to make a record of the complaint in the evaluation report;
-- or if the administration intends to place a record of the complaint in the teacher's personnel file;
-- or if, in the administrator's judgment, the complaint is sufficiently relevant to the teacher's performance as to require a formal conference.
the discussion of the complaint, the teacher will be presented with the
complaint in writing signed by the administrator or complainant.
The written complaint shall include the name of the person(s) making the
complaint and all other available information including the nature of the
complaint, and the requested remedy, if any.
such complaint which the administration chooses not to discuss with the teacher
or which is not discussed within the required time shall not be considered in
the teacher's evaluation and shall not be used against the teacher in any
subsequent action by the District.
teacher shall have the right to attach any rebuttals or explanations to any
written documents placed in the personnel file.
A. The official file on all teachers is confidential and shall be kept in the District Personnel Office. A District working file may also be retained by the District. However, any materials in the working file which the administrator chooses not to discuss with the teacher within ten (10) working days of its being recorded shall not be considered in the teacher's evaluation and shall not be used against the teacher in any subsequent action by the District.
B. The official personnel file of all teachers is subject to the following provisions:
1. A teacher may attach a rebuttal to materials or add relevant materials of his/her choosing.
2. Teachers may desire to consult with the Personnel Director/administrator from time to time with respect to what materials should be retained in their file.
4. Teachers shall be given written notification or a copy within five (5) days when material is added to the teacher's file without the teacher's signature.
MEMORANDUM OF UNDERSTANDING ("MOU") Appendix C
The following memorandum is intended to clarify the intent of the parties relative to the statement "All teacher evaluations will be done openly."
The intent is that teacher evaluations will not be done in a secretive manner. The District will not seek out student opinions on an initial basis for the sole purpose of evaluating a teacher. However, if a student or group of students bring(s) an initial complaint to the attention of the District, the above statement shall not preclude the District from talking with a student or group of students, nor shall it preclude the use of information given by a student or a group of students in the course of attempting to resolve a complaint. Depending upon the seriousness of a complaint, information from a student or group of students may become part of a teacher's evaluation, in accordance with the complaint procedure in Article 13 of the contract.
RELEVANT PROVISIONS OF
PROFESSIONAL ACCOUNTABILITY PROGRAM
(SUPERVISION AND EVALUATION MANUAL)
(Adopted June 1989)
PERFORMANCE STANDARDS FOR TEACHER
AREA: SUPERVISION AND CLASSROOM MANAGEMENT
STANDARD 29: CLASSROOM BEHAVIOR MANAGEMENT
* Establishes appropriate standards in accordance with school and
district policies for student behavior and communicates these clearly to
* Enforces behavior standards and stops disruptions quickly, firmly,
fairly, and consistently.
* Reinforces appropriate student behavior.
* Works with administrators, parents, counselors, and other support
personnel as appropriate to assist in student behavior management.
Evidence of this Standard will, in part, be noted from both formal and
informal classroom observation.
In addition, the teacher must be able to show evidence, if requested,
that he/she has
* Established classroom rules in accordance with school and district
policies and regulations, and informed students.
This evidence will be in lesson plans and in written or posted materials.
* Established contact with appropriate others, particularly parents, when
dealing with an ongoing individual student behavior problem.
AREA: COMMUNICATION AND
STANDARD 32: SHARED
* Actively participates in faculty business and willingly serves on
school and district committees as requested.
* Contributes to the decision-making process and abides by final
It will be determined that the teacher has met this Standard unless there
is observed and documented evidence to the contrary.
STANDARD 33: COOPERATIVE WORKING RELATIONSHIPS
* Demonstrates willingness to be
flexible in cooperatively working with others.
* Confers with colleagues and others concerning educational matters and
willingly shares ideas, materials, and assistance.
* Works cooperatively with other trained educational personnel in seeking
the most effective methods to assist students.
It will be determined that the teacher has met this Standard unless there
is observed and documented evidence to the contrary.
STANDARD 34: CLEAR
AND POSITIVE COMMUNICATION
* Demonstrates skill in communicating clearly and positively with
students, parents, staff, and patrons.
* Is sensitive to parental concerns and seeks to offer assistance
* Responds promptly to inquiries related to students or the school
This Standard will be verified through observation and awareness of
teacher behavior both in and out of the classroom setting.
The intent of the Standard is that the teacher demonstrate effective
communication skills in carrying out all aspects of his/her professional
responsibilities. Particular emphasis will be placed on dealing with parents in
a sensitive and caring manner.
STANDARD 35: STUDENT
The teacher communicates effectively with students and parents regarding
the student's educational progress and needs.
It will be determined that the teacher has met this Standard unless there
is observed and documented evidence to the contrary.
The intent of the Standard is that the teacher provides regular feedback
to students regarding their work and/or progress, and that parents are informed
early if adequate progress is not being made.
The teacher must be able to show evidence, if requested, through lesson
plans, grade book records, student assignments, and/or other records indicating
student and parent contact.
STANDARD 36: RESPECT AND
CONCERN FOR OTHERS
The teacher shows a genuine concern for students, staff members, and
parents, and interacts with them on a level of mutual respect.
This Standard will be verified through observation and awareness of
teacher behavior both in and out of the classroom setting.
The supervisor may look for
* Friendliness in manner and tone of voice.
* Recognition and fostering of each person's worth and dignity.
* Avoidance of sarcasm.
* Avoidance of demeaning or embarrassing remarks or actions.
* Treatment of people with courtesy
* Demonstration of effective listening skills with an effort to
understand people's concerns and anxieties.
* Recognition of potential problems or conflicts with actions to avoid
inappropriate or unnecessary confrontations.
OBSERVATION AND EVALUATION
C. Evaluations (This section pertains to all non-administrative certificated staff
Official notice of renewal or non-renewal of contract will be given by
Written evaluation ... will be completed and an evaluation conference
held by June 10.
Grievant is a Special Education K-5 Teacher whose contract was not
renewed at the end of her third probationary year.
If her contract had been renewed, she would have become a tenured teacher
starting with the 1992-93 school year. The
Association does not challenge the non-renewal decision itself, as that decision
is specifically exempted from the just cause provision.
Instead, this grievance protests the placement of materials in Grievant's
personnel file and the handling of complaints and evaluations, including the
presentation of critical comments from Principal Sherry Steele at an executive
session of the School Board (the "Board") just before the non-renewal
vote. Most of Steele's comments
related to a February 7, 1992, meeting called by Director of Student Services
Grievant was hired in October 1989, after the school year began.
The school's long-term counselor was no longer there that year. Steele was in her first year as principal at the school that
By all accounts, Grievant's first year was difficult.
The children had difficulty accepting a new teacher.
Grievant had a violent student ("Student A") and another
student who became disruptive when he did not receive his medication
regularly ("Student B"). The
District eventually took over the function of medicating Student B.
Between February 1 and June 5, 1990, Grievant referred students to the
office on at least 35 occasions. No
evidence exists regarding how many of these referrals involved Students A and B.
No administrator suggested to her during the year that she was making too
In a Teacher Progress Report prepared December 14, 1989, Steele commented
favorably on Grievant's organizational skills and ability to select and
implement programs. She noted, however, that Grievant's "intensity may at
times create a barrier in positive communication, particularly with staff."
She commended Grievant for her "maturity and judgment in assisting
the students adjust to the change" when she assumed charge of the class.
In January 1990, the District received complaints about Grievant from
three parents, including the father of Student A and the mother of Student B.
Student A's father complained about an apparent "personality
conflict" between Grievant and the student.
Student B's mother complained that Grievant had accused her son of
stealing classroom materials that had inadvertently been put in the student's
folder. The third parent complained that her daughter was not making
progress and indicated her daughter did not think Grievant liked her.
Grievant and Steele met shortly after these complaints and discussed ways
to resolve them. The third parent
expressed satisfaction with her daughter's progress later that same year.
The District received another complaint from the father of Student A in
early February 1990. The complaint alleged that the student had a "tramatic
[sic] experience" in Grievant's classroom and demanded his removal from her
class. However, he specifically declined
to bring specific charges against Grievant because "the conduct in her
class room is to [sic] elusive for that."
Grievant and Steele met to discuss this complaint.
Ultimately, Student A asked to remain in Grievant's class.
In April 1990, one of Grievant's students ("Student C")
suddenly left the classroom after a string of disruptive incidents.
Grievant looked for him at the office, but did not find him there.
While at the office window, she commented to the office secretary that
she did not know what else to do with Student C except lock him in the trunk of
her car. Steele admonished Grievant
not to make such comments where she could be overheard by parents and students
in the hall. Grievant acknowledged
her comment was inappropriate in that setting.
According to Grievant, other teachers also found Student C difficult to
manage and jokingly suggested draconian measures to deal with him.
Grievant testified that on a later occasion she notified Steele that
Student C had disappeared again. According
to Grievant, Steele responded by voicing the hope that he had run away, was
lost, and would never be seen again. Steele
denied making such a comment or having this encounter with Grievant.
Grievant's year-end evaluation commented favorably on her "effort to
establish and maintain communication with parents/guardians of Learning Resource
Center students." The evaluation
rated her as "Does Not Meet Standard" in Classroom Behavior Management
(Standard 29) and Clear and Positive Communication (Standard 34).
As to Standard 34, the evaluation commented as follows:
Communicating with students and parents in a manner often perceived as
accusatory is an area of deficiency for [Grievant].
Although her intent may not be to accuse or confront, her communication
style has resulted in parental and student complaints. This
deficiency has been previously discussed. ....
wrote a rebuttal to the evaluation and requested removal of the adverse
comments. The Association argued on
her behalf that the parent complaints should be given little credence because of
the transition in teachers and the parents' history of conflicts with other
staff members. Steele declined to
change the evaluation.
Steele testified that two staff members came to her with concerns about
Grievant during the year. She
described those concerns as involving primarily Grievant's communication with
students. Steele testified that her concern was Grievant's
communications with parents and students, not with staff.
She did not discuss these staff comments with Grievant.
Grievant's file contains five reports of classroom observations during
her first year. None comment on
accusatory or confrontational communications with students or parents.
The fourth observation, held in April, criticized Grievant for excessive
verbalization. The final
observation, held in May, noted improvements in Grievant's "delivery, e.g.,
giving instructions, and in your rapport with kids." It also commented favorably on an incident in which Grievant
sidestepped a power struggle with a disruptive student.
On September 24, 1990, Steele issued a memo of directives to Grievant
covering the concerns noted under Standards 29 and 34.
The directive addressing communication required that she
3. Communicate in a positive
and nonconfrontive [sic] manner. When dealing with a student's unacceptable behavior be factual
and clear, e.g., clarify the expectations/consequences check for student
understanding. Communicate with
parents in a factual and nonjudgmental manner.
memo concluded by informing Grievant that
You must correct these deficiencies and continue to meet all expectations
of these directives throughout the school year.
If these areas of deficiency are not corrected, a formal plan of
assistance will be initiated.
testified that she did not receive complaints from staff about Grievant's
communications to them that were significant enough for her to put something in
the directives on this subject.
On November 15, 1990, Steele documented Grievant's progress under the
memo of directives. Steele noted an improvement in communication style and
commented, in relevant part,
Your effort in communicating in a positive manner is at a very conscious
level, e.g., you choose your words and voice tone carefully.
At times you appear to be thinking of your response when others are
talking, giving the impression of not listening.
on this improvement, Steele notified Grievant that a formal plan of assistance
would not be initiated. She
reminded Grievant that she must continue to meet these expectations.
Grievant's 1990-91 evaluation rated her as "Meets Standard" in
all areas. The evaluation
commented, in relevant part,
It is very evident that [Grievant] makes a conscious effort to be
positive in her communication with staff and parents.
Formal and informal observations indicate a much more gentle and positive
approach, particularly with parents. She
is to be commended for her willingness and effort to change her style of
communication. One area [Grievant]
still needs to improve is her tendency to discuss her concerns about Student
Services issues with other staff members. If
she has a concern, she should go directly to me or to the Director of Student
Services for clarification or direction.
testified that the last comment was in response to Grievant's expressions of
frustration over changes in the Student Services Department.
Steele was concerned about the substance of Grievant's comments, not the
style. She discussed with Grievant
the need to think about her role as part of that department.
Grievant's file contains three reports of classroom observations for her
second year, all conducted in the fall semester.
It also contains one report of a parent conference.
The only adverse comments on Grievant's communication style noted
February 1992 Meetings
Grievant's third year was uneventful until February 1992, when Luber
sought a meeting with her to discuss possible changes in the allocation of
responsibilities between teachers and counselors in the department.
Grievant convinced Luber to hold a group meeting with all Special
Education teachers instead of the individual meetings he planned.
The two disagree regarding the specifics of the conversation that led to
this result; both agree that Luber reluctantly agreed to a group meeting after
learning that Grievant intended to meet with the other teachers to discuss the
The Special Education meeting occurred February 7, and included
administrators as well as staff. Before
the meeting, a dispute arose over whether a middle school special education
teacher, Mike Weischedel, should be allowed to attend.
Grievant testified she had not invited Weischedel, but felt awkward
because of the dispute. She
testified that Luber responded to her expression of unease by telling her to
settle down and take control, and added "I won't bite."
Grievant testified she felt belittled by the last comment. Luber and Steele recall Grievant saying she had invited
Weischedel. Luber testified he told
Grievant to try to get control of herself and relax; he denied saying "I
won't bite" or making a belittling comment. He testified the purpose of his comment was to "break
the ice" and get Grievant to relax and flow with it, and to reassure her
because she was very upset.
During the meeting, Luber expressed concern over a lag in referral,
testing, and placement of Special Education students.
To remedy the problem, he proposed to remove some testing responsibilities
from the Case Coordinator, Debbie Origer, and give it to the teachers.
Grievant commented that Origer had expressed a desire to move into the
classroom and asked whether that career aspiration was the genesis of the
proposal. She also commented that
the previous Case Coordinator, Linda Johnson, had maintained a 30-day turnaround
time and suggested that Johnson be consulted for suggestions on the delay
problem. According to Luber and
Steele, Johnson appeared embarrassed by this suggestion and made no verbal
According to Luber and Steele, Grievant also commented that Luber was not
in her class often enough to know what was going on in her program.
Grievant testified that she expressed concern because Luber had not
visited her classroom and talked to her about the proposed changes before
deciding on them.
Steele testified that she considered Grievant's remarks on February 7 to
be insubordinate. She met with Luber and Director of Personnel Stephen Williams
on February 10. The three discussed
the earlier memo of directives and the possible responses to Grievant's conduct.
Steele wanted to place Grievant on a plan of assistance.
Luber believed that would be counterproductive because he was trying to
bring regular and special education teachers together.
Steele and Luber decided simply to meet with Grievant to discuss their
Steele and Luber met with Grievant and Association representatives Ted
Romoser, Mike Githens, and Carolyn Vandiver on February 13.
At the start of the meeting, and at several points during the meeting,
the Association asked whether directives or discipline could arise out of the
meeting. Each time, Luber responded
that the meeting was merely to improve communications and did not involve
discipline or investigation. Although
the meeting began with a lot of tension and strain, it was amicable by the end.
One upshot of the meeting was that Grievant agreed to be a "team
In reviewing the February 7 meeting, Luber said he and two others
perceived Grievant's comments regarding Johnson as insulting to Origer.
He declined to identify the "two others" who had that
perception. He specifically denied
knowing whether Origer felt that way. Grievant
agreed to talk to Origer and apologize for any misunderstanding; she did so
The February 13 meeting included a discussion of the issue of "free
speech." Luber testified that
Romoser raised this issue after Luber referred to Performance Standards 32
through 36. In response, Luber
reminded those present that free speech was defined by those standards.
Romoser, Vandiver, and Grievant testified that performance standards were
not mentioned in the meeting at any point.
Instead, their recollection is that Romoser pointed out Grievant's free
speech rights after Luber strongly objected to Grievant's original plan to meet
with fellow teachers outside work time.
Luber prepared a memorandum regarding the meeting, dated February 18.
The memo read, in relevant part, as follows:
1. During our February 7, 1992
meeting ... your comments to [Origer] were perceived by me and at least two
other people to imply that [Origer] was less competent than her colleague,
[Johnson], who was performing the case coordinator job just prior to [Origer].
You indicated that your comments were not intended to imply incompetence
on [Origer's] part and asked if [Origer] perceived them in that manner.
I replied that I didn't know [Origer's] perception and suggested that you
ask her directly. You indicated that you would ask [Origer] and provide her an
apology if necessary because you did not mean to imply she was incompetent.
indicated that your comments to/about me were perceived by me and at least two
other people to imply that I was not in your classroom enough to make an
adequate assessment or proposal regarding the delivery of services of the
Student Services Department. You
indicated that that was not what you meant and apologized for any
summarized the meeting by saying to you that the concerns I identified regarding
your communications with others on February 7, 1992 were examples of you
apparently not intending to project the same message that was perceived by the
other person. ...
I concurred with your comments and those of [Romoser] that you have a
right to the freedom of speech. I
clarified for you that free speech as per the teacher performance standards
clearly meant that you would communicate in a professional manner as identified
by Standards 32 through 36. I
emphasized that because group process was an important element in considering
any proposed changes in the Student Services Department, that all people
involved would need to adhere closely to Standards 32 through 36.
I closed the meeting by saying that I need and want your opinions and
look forward to your constructive input into the group process that will help to
shape the future of the Student Services Department.
Vandiver, and Grievant testified to surprise at the tone and content of the
memo. All three noticed factual
errors in the summary of events. However,
they did not consider it necessary to respond to the memo for three reasons.
First, the meeting had ended on a friendly note; second, Luber had
assured them that the meeting was not disciplinary; and third, there was no
indication that the document would be placed in Grievant's file or used for any
Third-Year Evaluation and Observations
Grievant's 1991-92 evaluation was prepared after the non-renewal
decision. The evaluation rated
Grievant as "Does Not Meet Standard" with regard to Standard 34, with
... Although this area was marked Meets Standard on her 1990-91
Summative Evaluation Report, it was noted that there was a tendency to discuss
concerns about Student Services issues with other staff members.
She was encouraged to go directly to her Principal or to the Director of
Student Services for clarification or direction.
Positive communication concerning Student Services processes once again
became an issue in February, 1992, when a meeting was convened to discuss
options for improving timelines for special education evaluation.
At that meeting, [Grievant's] communication was negative and
counterproductive to the group process.
Grievant's file contains three reports of classroom observations during
her third year. None contained
adverse comments on her communication style.
Observations By Steele
Steele first met Grievant in 1983 or 1984, while Grievant was a student
teacher. At the time, she
considered Grievant to be intense, abrasive, and "confrontive."
She concluded that Grievant would have trouble dealing with Special
Education students, who tend to be disruptive.
When Grievant first applied for the vacancy, Steele did not interview
her. Later, at the suggestion of
the then-Assistant Superintendent, she took another look at Grievant's file.
Grievant's file showed good experiences since her student teaching days.
In her interview, she commented that communication was one of her
strengths. She also explained that
she had been in a difficult personal time while student teaching. Grievant's references commended her skills in communication
and class discipline. Steele
testified that, as a result of the interviews and references, she had no
preconceptions about Grievant's communication skills when she began with the
Steele initially testified that she had no concerns about Grievant's
communications to staff before February 1992.
She later testified that two other resource teachers complained to her at
least once a year over Grievant's communication style and dominance of
department meetings. However, she
did not believe she had to become involved in those situations.
In her view, the comments were random comments rather than official
complaints. She did not tell
Grievant of these concerns. She
testified that she believed she passed the comments on to the then-Director of
Student Services, Glen Johnson. She
was unable to recall whether she also mentioned them to Luber.
Steele initially testified that she saw adversarial behavior in
Grievant's classroom. After reviewing
the reports of classroom observations in Grievant's file, Steele testified that
she did not observe "confrontive" or accusatory behavior in making
observations of Grievant's class. She
also did not see "power struggles" in class.
Board Executive Session
The Board taped the executive session at which Grievant's renewal was
considered. The flavor of the
meeting can be fully appreciated only from lengthy quotes of the session.
Steele began her presentation with the following comments:
... [Grievant] started her second year, which was last year, not on a
plan of assistance but a set of written directives because she had some areas
that she needed to work on. Specifically
those were communicating in a positive manner with everyone--other staff
members, parents, and students, and also she had some difficulty in classroom
management. She tends to get into
power struggles with the kids and the Resource Rooms tend to have a lot of kids
who will get into power struggles with you and generally will win.
I worked real hard with [Grievant] last year and she really put forth a
lot of effort and made some very positive changes.
Her communication style even at the end of the year was not--it was kind
of forced, at least I perceived it to be forced.
She was--and when I say "forced" I mean she was making a very
concerted effort in an attempt to be positive in communication--especially
when I was there. I did not pursue
the plan of directives because she did make a lot of effort to come up to
standard. She had a relatively
positive evaluation at the end of the year.
And this year has been going pretty well until [Luber] made the decision
that he wanted to look at making some changes in the student services department
and decentralizing some of the testing and asking the Resource Room teachers
to, perhaps, pick up some of that responsibility.
He had a meeting involving building principals, counselors, and the
resource teachers. To put it
mildly, [Grievant] really conducted herself in a very unprofessional manner.
She accused [Origer], who's the case coordinator, of not being proficient
in her job and she did that indirectly, but the accusation nevertheless was
there, and it was just a really negative, very hostile meeting.
And [Luber] and I--[Luber] wrote her a memo and they had a meeting and
she brought [Vandiver] and [Romoser] and [Githens] with her, and [Luber] and I
met with her and she--Since then, he just told her ... he essentially told her
that she had been unprofessional and that he expected her to act in a more
appropriate professional manner from then on.
He followed it up with a very well-written memo.
Since then, she's again been trying really hard to be professional.
I do have some concerns about [Grievant].
It's really late to put her on a plan of assistance as a probationary
teacher; this is her third year as a probationary teacher.
[Williams] and [Luber] and I talked about it, but because of where we are
in the time of year we would have to put out a set of directives and the time
is just not right. It was a real
unfortunate timing for that. ....
Board then engaged in a lengthy discussion of whether it was obligated to give
Grievant tenure and whether it could, instead, put her on a fourth probationary
year. Williams informed the Board
that it could not legally impose a fourth probationary year.
He said the District would not win if it let Grievant go "because we
have not yet had her on a plan of assistance."
He suggested that, in the future, teachers who experienced problems in
their first or second year should be placed on a plan of assistance.
In response to a concern over lack of documentation, Steele commented
Oh, yeah, it's been well documented.
I mean, we have, I have a lot of documentation from last year when she
was on, I had her on a set of directives, and that was done well, and it was
documented very well. It's just
that when someone makes the kind of effort that I saw her making to improve
those deficient areas, I had no reason at that point to put her on a plan of
assistance. To be real truthful, my
gut level feeling was, I was almost sorry that she made that much effort and did
come along because I just had a feeling that she wasn't the kind of person that
would ever really be top notch, but it was just a nebulous thing, and I had
nothing to go on. ...
Board then discussed renewing Grievant's contract but putting her on a plan of
assistance. One Board member
finally asked Steele what her recommendation was.
Well, my recommendation on paper here was to go ahead and give her tenure
simply because I know the ramifications of upholding our time line.
If there were a way not to give her tenure, to be honest, I'd prefer not
to because I don't think that she's ever going to (Pause) Communications style
is something that is very difficult to change.
Board member objected to renewing Grievant because of the adverse impact on
students. Steele commented
I guess that as far as [Grievant's] working with kids is concerned, I've
seen some real improvements there. So,
I don't see how kids are the issue. Her
communications style with parents -
was then cut off by a Board member. When
asked point blank if she would prefer not to have Grievant back, Steele answered
yes. Williams then suggested the
Board would be in trouble both legally and contractually if it non-renewed
Grievant without having placed her on a plan of assistance.
After a lengthy discussion of the ramifications of non-renewal, Steele
was asked if Grievant's conduct was the "last straw."
And I was ready at that point when after that meeting I talked to
[Williams] and I was ready to go full bore right then and go ahead and put her
on a plan of assistance. And then talking it through with [Williams] and [Luber] and
I, and it was really [Luber's] issue because it was his student services
further commented this was the first time she had seen that kind of behavior in
a big meeting. The Board then
engaged in a lengthy discussion of the risks of legal costs and eventual
reinstatement if it decided not to renew Grievant.
During that discussion, Steele was asked if Luber's recommendation
would be different from hers; she responded it would not.
Williams then commented
[O]ur recommendation ... is the administrations recommendation.
And the reasons for it are not necessarily because we, you know, they are
not necessarily because we think she's the best teacher we've ever seen or the
best communicator or whatever those problems that existed were.
The issue here is that this is now.
I mean, the time frame at which this happened was such as to preclude
that plan. It wasn't going to
happen. That's the issue.
Board decided not to renew Grievant's contract. After a later hearing with testimony from parents and staff,
the Board upheld its decision.
Board member Jeff King testified that he felt a plan of assistance should
have been done. In voting not to renew, he relied on Steele's statement that
she did not want Grievant back, if possible.
He acknowledged that Steele recommended renewal, but believed the reason
for that recommendation was simply the time frame rather than merit.
Board member Joyce Weatherly was very vocal during the executive session
in recommending non-renewal. She
testified that, but for the February 7 incident, she probably would not have
been uncomfortable renewing Grievant's contract.
However, she further testified that she believed Grievant would hurt the
students, based on her own observations. She
had harbored concerns about Grievant since her hire because of the late date of
hire. She also did not believe
Grievant's personality fit well with her position.
She was able to observe Grievant often when she visited the school.
She initially testified that she saw troublesome interactions between
Grievant and parents when Grievant's door was open, but later testified that the
interaction was not bad. She
testified that parents had conveyed to her concerns that Grievant told them
things but did not listen to them. She
did not pass those remarks on to Steele. She
was unaware of any parent complaints to the District regarding Grievant during
her last year and a half.
Level II Hearing
Romoser testified his concern at the Level II hearing was that, although
people allegedly were unhappy with Grievant, those people were not identified
and the events about which they complained were not brought to Grievant's
attention. The Level II hearing was
taped, but the tape was turned over during Romoser's introductory remarks
regarding the basis for this alleged violation.
In those portions of the meeting that were taped, Romoser objected
several times to the failure to process complaints according to the complaints
procedure. In addition to the
complaints by Steele and Luber, Romoser mentioned that reference had been made
to "another staff member." After
being cautioned not to mention other names, Romoser described the Association's
concern as follows:
In that discussion, another staff member who was presented as perhaps
an injured party as a result of alleged unprofessional conduct by
[Grievant]. We believe that that
may constitute the presentation of a complaint to the [school] board about
the teacher without going through the requirements of the complaint procedure.
Specifically, it was not discussed with the teacher, and it wasn't
discussed within the timeline, obviously, therefore should not be used against
the teacher in subsequent actions. .... [Emphasis added]
and Romoser then engaged in the following exchange:
... [Y]ou are saying that your contention is that there were complaints
made during the executive session relative to [Grievant] and that you feel is in
Yes, because they were not handled according to complaint procedure.
One of two things happened, either complaints were presented or
evaluation was presented. I'll
speak about evaluation here and now, but regardless whether you choose one or
the other, they were not handled according to contractual and policy guidelines.
the end of the discussion, Romoser pointed out that the suggestion had been made
that another employee "was or may have been offended or hurt."
He objected to the impression left with the Board that "another
staff member has a complaint against [Grievant]."
Grievant owns a farm near Lebanon. She
has applied for positions in nearby school districts, explaining each time that
she was non-renewed. She has not
received interviews as a result of those applications.
She also applied to the District for a substitute teaching position. Williams initially told her she would be hired as a
substitute. However, after she
appeared at the District to complete the necessary paperwork at the start of the
1992-93 school year, Williams informed her that she would not be put on the
History on the Relevant Contractual Provisions
Article 20 has undergone many changes since it first appeared in 1980.
In 1986, the parties added references to working files to Article 20(A).
Vandiver testified that her recollection was that the Union proposed this
language because matters contained in working files had shown up in evaluations
and directives. Article 20(B)(4), except for the words "or a copy,"
was added in 1983. The words
"or a copy" were added in an interim revision of the Agreement in the
1984-85 school year. No evidence
exists of the genesis of the additional language of Article 20(B)(4).
Article 13 first appeared in the Agreement in 1983.
Vandiver testified that the Union proposed this language to provide a
fair way of dealing with parent complaints as they arose.
The bulk of Article 12(B), in its current form, first appeared in the
Agreement in 1983. The last two
sentences of Article 12(B)(1), the MOU to which those sentences refer, and all
but the first sentence of Article 12(B)(7) were added in 1990.
With regard to Article 12(B)(1), the Association initially proposed to
add the following sentence in 1990: "All
evaluation will be done openly and with regard for standards of fairness."
It proposed to add to Article 12(B)(3) language prohibiting the
solicitation of student opinions regarding performance.
The District later counter-proposed with "All teacher evaluations
will be done openly." The
District's counter-proposal did not address the issue of solicitation of student
opinions. The Association
counter-proposed by accepting the District's revision to Article 12(B)(1) and
suggesting a separate paragraph reading as follows:
The District will not solicit student opinions regarding teacher
performance. The District will not
solicit the opinion of classified staff or community volunteers or persons from
outside agencies regarding teacher performance.
Any information from the sources named in this paragraph that the
District plans to use in evaluation will be treated as a "complaint"
under Article Thirteen of this Agreement.
District counter-proposed with the MOU that currently appears in the Agreement.
With regard to Article 12(B)(7), the Association initially proposed to
allow plans of assistance to be imposed only after completion of an evaluation
cycle, except where the District had "objective evidence of serious failure
or inability to carry out ... duties."
The District counter-proposed with the enumerated requirements currently
shown in the Agreement.
POSITION OF THE ASSOCIATION
The District violated Article 20 by placing the February 18 memo in
Grievant's personnel file without notice to her.
Although Grievant got a copy of the February 18 memo, she had no notice
it would be placed in her personnel or working file.
She had no way of knowing the memo might be used against her, or that she
should attach a rebuttal--a right also guaranteed by Article 20(B).
Article 20(B) must be read to require that the teacher be told a document
is being placed in the file. Any
other reading of the provision would render the entire article meaningless.
This interpretation is consistent with the District's past
practice. No evidence exists of the
bargaining history behind the addition of the words "or a copy" to
Article 20(B), nor is it clear from the language how the copy is to be provided.
The provision can be read to permit the District to send an employee a
note saying a document will be placed in the file, or to permit the District
to send the teacher a copy and tell the teacher it is going in the file.
In either case, the teacher must have notice that the document is going
in the file. Otherwise, the teacher
must guess which of many District memoranda will be placed in the personnel
file. This would be an absurd
construction of the Agreement.
The failure to notify Grievant that the February 18 memo was going in her
file was more than a technical violation. Because
Grievant believed the dispute over the February 7 meeting had been resolved, she
took no action to protect her position before the Board made its non-renewal
decision. Had she known of the use
to which the incident would be put, she might have prepared a rebuttal or asked
for an opportunity to speak to the Board.
The grievance covered Issue 2-a. Romoser's
Level II comments gave clear notice of the concern over reliance on complaints
that were not processed according to the complaint procedure.
The February 18 memo refers to "at least two other staff
members" to support the criticism of Grievant's conduct at the February 7
meeting. Steele's testimony
identified six individuals who complained.
Despite questioning, none of these individuals were identified at the
February 13 meeting. Grievant was
thus denied the opportunity to verify the complaints and try to resolve them.
Because the District relied on staff comments to support non-renewal,
they were "complaints" within the meaning of Article 13.
The District "used" those complaints against Grievant because
it specifically alleged that her comments were "perceived by a number of
staff as derogatory."
The District violated Article 12(B)(7) by dismissing Grievant for
performance reasons without first using a plan of assistance.
Williams and Steele told the Board that a plan of assistance was
necessary in a performance case. Steele
said the District had chosen not to place Grievant on a plan of assistance
because (a) Luber felt it would be counterproductive and (b) she believed it
was too late in the year. Notably,
Steele did not tell the Board that a plan would be futile, that Grievant had
already had her chance, or that a plan was unnecessary under the Agreement.
Although probationary teachers can be non-renewed or dismissed "for
any reason deemed in good faith sufficient," Oregon law is clear that the
Board is bound by the Agreement even though it might limit this statutory
authority. Administrators, not the Board, determine when a plan of
assistance is necessary. The
administrators knew the Agreement required a plan of assistance to non-renew or
dismiss Grievant. The District
simply chose not to provide a plan of assistance.
The District's hands were not tied by the timing of the incident.
If it believed Grievant was insubordinate or unprofessional during the
February 7 meeting, the District could have disciplined her for misconduct and
based the non-renewal on that incident. Instead,
it went to great lengths to tie the February 7 incident to previously-identified
areas of deficiency. Having characterized
the incident as performance-related rather than disciplinary, the District was
required to follow the contract. A
second option would have been to place Grievant on a plan of assistance immediately
after the incident. The District
could have renewed her contract subject to satisfactory completion of the plan
of assistance by the end of the year, and dismissed her if she failed to meet
The Arbitrator should reject the District's post hoc
rationalizations suggesting that the earlier memo of directives made a plan of
assistance unnecessary or met the requirement of a plan of assistance.
Steele did not offer either explanation in discussing why she chose not
to place Grievant on a plan of assistance.
She and Williams recognized a directive was not the same as a plan. Moreover, the directives concerned classroom performance.
Steele admitted that Grievant had no problems with children.
Steele, Luber, and Williams consciously chose not to place Grievant on a
plan of assistance or impose discipline because they thought the incident had
Williams is responsible for administering the Agreement and is in the
best position of any administrator to determine what the District understood
Article 12 to require. Steele was Grievant's supervisor and was the best person to
determine whether a plan of assistance might be appropriate.
The District's practice has been to place teachers on a plan of
assistance for performance deficiencies.
Oregon law is unsettled regarding whether ORS 342.850(2)(b)(D) requires
plans of assistance to correct performance deficiencies.
However, the courts have recognized a legislative intent to reduce the
discretionary authority of school districts in evaluations.
The District violated Article 12 when it recommended Grievant's
non-renewal for reasons not based in her evaluation.
Evaluations are to be done "openly,"--i.e., "will not be
done in a secretive manner." The
MOU describes the process for dealing with student input--the Association's
immediate concern at the time. Nothing
in the Agreement limits the guarantee of openness to the issue of student
input. Rather, that guarantee
requires evaluations based on observation and documented data-gathering,
rather than on the evaluator's personal feelings or casual comments made by
Grievant's evaluation was anything but open.
She was non-renewed based on Steele's comment that she would rather not
have her back. In making this
comment, Steele did not rely on written documentation or observations, on
complaints processed through the complaint procedure, or on any disciplinary
action to which Grievant had a right to respond.
Instead, Steele relied on her "gut feeling" that Grievant would
never be a top-notch teacher. This
"gut feeling" came from contacts with Grievant in 1983 or 1984 and a
personal dislike of Grievant. It
conflicted with Steele's observations in the classroom.
Steele has a right to her personal likes and dislikes, but cannot base
her evaluation or recommendation for renewal on these undocumented and
secret feelings. To allow her to do
so would render the evaluation article meaningless.
Much to her chagrin, Steele was unable to find anything to complain about
in Grievant's performance in 1990-91. The
Arbitrator should discredit Steele's testimony that she did not rely on
undocumented and unprocessed complaints from fellow staff members about
Grievant's communication style. Grievant
received no complaints from students, parents or staff in 1990-91 and 1991-92.
Steele admittedly wanted to use the February 7 meeting as an excuse to
place Grievant on a plan of assistance, consistent with her disappointment with
Grievant's success under the directives. Luber
disagreed that a plan of assistance was appropriate.
Luber and Steele agreed that no discipline would arise out of the
incident. The Board was bound to
follow this administrative decision.
At least one Board member relied on additional secret information outside
the evaluation process in deciding to non-renew Grievant.
Weatherly received adverse comments from Steele and parents, and had
personal complaints about Grievant as well.
Her reliance on these factors was improper.
Assuming that Weatherly made the observations to which she testified, she
was not qualified to make observations.
Moreover, her alleged complaints were not processed through the complaint
procedure, but were gathered in secret.
Grievant should be reinstated with full backpay.
The Arbitrator should make no comment on Grievant's status as a
probationary or permanent teacher, since that issue is decided by operation of
law. The courts have upheld
arbitrators' authority to reinstate permanent teachers as a remedy for
violations of evaluation procedures. The
School Board specifically contracted to provide evaluation, complaint and
personnel file procedures. It also
agreed to arbitrate violations of those provisions.
It has thus empowered the Arbitrator to order a remedy that will restore
Grievant to the position she would have occupied had the District honored the
Alternatively, Grievant is entitled to two years' salary plus medical
benefits. A substantial money award
is appropriate, absent reinstatement, because of the harm done to Grievant
as a result of the District's actions. Such
an award is especially appropriate based on the District's "calculated
risk" in rejecting its administrators' determination that a plan of
assistance was needed. The District
only stood to lose "legal costs."
Grievant lost much more: her
reputation, community of co-workers, seniority, medical benefits, and job. The remedy must fairly compensate her for those losses.
POSITION OF DISTRICT
Whether or not the Arbitrator agrees with the Board's decision, it was a
thoughtful decision that was reaffirmed after hours of testimony, including many
parents and students invited by Grievant. The
Board had the right to insist that all teachers advancing to permanent status
meet all standards at a satisfactory level.
Grievant did not consistently meet Standard 34.
The Board was within its contractual rights to non-renew her.
The Arbitrator should not disturb that decision.
The District did not violate Article 20(A).
There was no contention that the first two sentences were violated.
The third sentence does not apply because the February 18 memo was placed
in Grievant's official personnel file, not her working file.
Further, the administrators thoroughly discussed their concerns on
February 13, even though the written document was prepared and delivered
later. The Association failed to
prove that there was any significant difference between the February 18 memo
and the February 13 meeting.
Vandiver's testimony showed a willingness to manufacture bargaining
history, including on this point. The
addition of language about the working file did not prove a mutual intent to
enact similar restrictions on the use of documents in the personnel file that
were not first discussed with the teacher.
Had that been the parties' intent, they would have used similar wording
in Article 20(B). Either this was
not the Association's objective, or the Association was unable to get this
Article 20(B)(4) is clear on its face.
Either teachers must be given written notification or they must be given
a copy within five days after a document is added to the personnel file without
the teacher's signature. Grievant
got a copy of the February 18 memo.
The Association's evidence on bargaining history is unpersuasive.
The words "or a copy" were added in 1984-85.
It appears likely that this change was in response to a problem with the
implementation of Section (B)(4) as negotiated in 1983.
The only possible meaning of the added phrase is to provide an
alternative to the original requirement of written notification when a document
is to be placed in the personnel file without signature.
Because the parties used "or" rather than "and" in
this clause, provision of a copy must be an alternative, not an additional
No clear and convincing evidence of past practice favors the
Association's interpretation. This practice was generally followed as a good personnel
practice, but was not followed without exception, nor was it compelled by
District policy or directive.
Grievant could have written and attached a rebuttal to the February 18
memo before the Board's action on non-renewal.
Romoser understood the February 18 memo would be kept somewhere in
Luber's files. The Association
simply judged it unnecessary to respond.
Even if the District violated Article 20(A) or 20(B)(4), no connection
can be made with the non-renewal decision.
The Board never saw the February 18 memo.
Steele did not tell them it had been placed in Grievant's file.
It was not the document, but the incident itself that raised the Board's
level of concern. A rebuttal would
not have changed the decision since the document was not circulated among Board
At the Level II hearing, Romoser claimed only two violations of Article
13: (1) Steele's comments at the
Board executive session were "complaints" that were not processed
according to the complaint procedure, and (2) Steele and Luber implied at the
February 13 meeting that Grievant had "injured" Origer but Origer had
never filed a complaint. The
Association has raised a different Article 13 objection at this arbitration,
based on Luber's supposed reliance on "complaints" from others in the
February 13 meeting and February 18 memo. The
Association did not refer to this grievance at earlier steps or attempt to
modify the grievance after the Level II conference.
It should not be allowed to expand the scope of the alleged Article 13
violation without notice to the District.
The original claimed violations of Article 13 were abandoned by the
Association and have no merit. Even
if timely raised, no violation of Article 13 occurred through Luber's reference
to others who perceived Grievant's comments as demeaning to Origer and Luber. The staff comments were unprompted and were not presented
as complaints. They were not part
of the basis for the conclusions Luber drew about the effect of Grievant's
words. Article 13 only applies to
"complaints" if the administration intends to make a record in the
evaluation report, place a record in the personnel file, or if the complaint
requires a formal conference. None
of these conditions were met here.
The protections of Article 13 were designed to provide an orderly process
for third-party complaints to administrators.
Such complaints usually are "hearsay" to the administrator.
The complaint process provides "due process" rights for the
teacher. This was not a third-party
complaint. Luber was a first-hand
witness and drew his conclusions from his own observations.
References in the February 18 memo to others who indicated similar
feelings are gratuitous.
The Union has not established that the Board considered complaints that
were not processed according to Article 13.
Steele did not share with the Board any third-party complaints that had
not been processed through the complaint procedure.
Her description of the February 7 incident reflected her own
recollection and reaction to Grievant's conduct.
Weatherly did not share with the rest of the Board her own personal
observations of Grievant or complaints she received directly from parents.
She did not pass on parental complaints to Steele.
In any case, Article 13 applies to complaints made to administrators, not
those made to Board members.
Finally, the additional language was presented as a way for teachers to
deal with parent and student complaints coming in to administrators about
teachers. The Association
admittedly did not file a grievance when parent complaints were placed in
Grievant's file in January and February of 1992 [sic] because the District
followed the complaint procedure.
The District has not violated Article 12(B)(1).
The comments made during the executive session were not part of the
evaluation process as defined in Article 12 or the Supervision and Evaluation
Manual of 1989 (the "Manual").
Under Article 12, evaluation is part of a process of providing criteria
and forms, goal setting, an evaluation based on written criteria, a
post-evaluation interview to discuss the evaluation, and submission of the
written evaluation to the teacher and personnel file.
A similar process is set forth in the Manual.
No language suggests that Board-level review for renewal or non-renewal
is part of the "evaluation" procedure.
Nothing guarantees the teacher will be informed of the recommendation
concerning renewal to be made to the Board.
The requirement that "teacher evaluations will be done openly"
does not apply to Board executive sessions to consider renewal and non-renewal.
The Association admits it sought to gain more in negotiations than it
achieved with regard to openness of evaluations.
The principal concern was administrators' response to parent and student
complaints and an alleged practice of soliciting complaints from students. The MOU clarifies and limits the scope of the parties'
agreement on openness. Nothing
suggests that the language applies to the Board's practices in making renewal
Even if the language applied to the renewal decision, no evidence exists
that the Board relied on "secret" information that was not known to
Grievant. The Board relied on
concerns about her communication style at the February 7 meeting, which
reinforced earlier concerns about parent and student complaints.
Grievant knew from the February 13 meeting and February 18 memo that her
supervisors were concerned about her communication style.
No evidence exists that the District failed to prepare a written
evaluation, as required by Article 12(B)(3).
Any alleged violation of 12(B)(3) appears to have been dropped by the
Association at the arbitration level, perhaps because the District completed
an evaluation after the Level II hearing.
The Association has not established that the District failed to follow
evaluation procedures in the Manual. The
Manual permits, but does not require, plans of assistance; it is entirely
discretionary. Unlike the current Manual, the previous Manual may have
required a plan of assistance prior to non-renewal.
Nothing in Article 12 mandates a plan of assistance.
In 1990 bargaining, the Association unsuccessfully sought to prevent
plans of assistance absent evidence of serious performance problems, and to
allow them only after an evaluation was completed.
It sought to make a decision to implement a plan of assistance grievable.
The Association's arguments in this proceeding are the flip side of the
same coin as its efforts in bargaining. It
now attempts to force the use of a plan of assistance. This argument is an attempt to take from the District the
discretion it has enjoyed since 1983.
ORS 342.850 is not incorporated into the Agreement and, in any case, does
not guarantee a plan of assistance prior to every non-renewal.
Unlike many other teacher contracts, the Agreement makes no reference to
ORS 342.850. Thus, any possible
violation of that statute is not grievable.
ORS 342.850 itself provides no remedy for any purported violation of the
evaluation procedure. Instead, the
procedures are enforced by the State Department of Education through the
standardization process. The
statute requires plans of assistance only when they could remedy a specific
Even if the Arbitrator could interpret and enforce ORS 342.850 through
the grievance process, the statute does not require a plan of assistance for
deficiencies in communication and working relationships.
Moreover, the essential elements of a plan of assistance were
implemented. The memo of directives was communicated in writing, described
the specific deficiencies that needed to be corrected, included a statement of
the required corrections that must take place, and included a written timeline.
Grievant received written notice of satisfactory completion of the
written plan, and she was allowed representation in conferences.
The Arbitrator cannot impose additional elements, such as a title reading
"plan of assistance."
No plan of assistance was needed at the time of termination.
The parties are not bound by the statutory interpretations of either
Romoser or Williams on this point. The
Arbitrator should rely on the views of the Fair Dismissals Appeals Board, the
agency statutorily empowered to interpret the statute.
That agency flatly rejects the idea that a plan of assistance is needed
to dismiss a certificated educator for inadequate performance.
Some expectations are so self-evident that no plan or written warning is
Grievant received written warnings about the need to use "clear and
positive communication;" about
deficiencies in classroom behavior management and clear and positive communication;
and to improve in her manner of communicating with regular staff about
Student Services issues. No plan of
assistance could have achieved what these warnings failed to achieve.
Deficiencies in communication style and cooperative working relationships
are not readily corrected through a plan of assistance.
Grievant learned the mechanics of "clear and positive communication."
Steele intuitively recognized the change as relatively superficial and
not part of Grievant's natural communications style or repertoire.
Grievant's reversion to her old, unacceptable style of communications and
interaction on February 7 was not from lack of skill, but rather lack of will.
Grievant received a warning from Luber on February 7 to gain control over
herself so she could participate in the meeting in a constructive manner.
Her conduct in the meeting was not a single "slip of the
tongue." It is not reasonable
to conclude that a plan of assistance, rather than a memo of directives, would
have prompted her to phrase her concerns in a more positive and less strident
fashion. No one can say with
certainty that another corrective process would have eliminated permanently
her propensity to react in this fashion when challenged by students, staff, or
parents. The Board was unwilling to
take that chance and grant her permanent status and substantially greater job
Other cases reinstating probationary teachers are inapposite.
In each of those cases, the deficiencies in question involved student
management or instruction techniques--deficiencies that can be attacked through
courses, workshops, and coaching. The
contracts in those cases did not retain discretion over whether to implement
a plan of assistance. Other
arbitrators have recognized that plans of assistance are not always
Even if the District violated certain sections of the Agreement, the
remedies sought are unreasonable and excessive.
Any technical violations of the processes for handling complaints, administering
personnel files, and conducting evaluations did not necessarily have any effect
on the non-renewal decision. For
example, since the Board did not see the February 18 memo, they would not have
seen a rebuttal to that document. Similarly,
the reference in that memo to "others" is immaterial to the
Under Oregon law, the Arbitrator does not have authority to grant
permanent status. At most, she
could grant a fourth probationary year with an order to place Grievant on a plan
of assistance. Nothing would
prevent the District from non-renewing Grievant at the end of that fourth year,
even if no new incidents of inappropriate communication occurred, because the
Board retains the judgment as to what cause is sufficient for non-renewal.
Nothing would prevent the District from dismissing her immediately if
she were involved in another instance of staff or parent conflict exacerbated by
her lack of clear, positive communication.
An award of even a year of salary and benefits in lieu of reinstatement
therefore is not reasonably related to the financial benefits she would be
guaranteed through reinstatement.
Finally, Grievant did not establish any real effort to mitigate her
losses. She applied in only three
districts, not including two large nearby districts.
She has not actively pursued substituting assignments in other nearby
The Arbitrator's function is not to decide whether Grievant was a good
teacher, or whether she was abrasive, confrontational, or otherwise
unsatisfactory in her performance of duties.
The Arbitrator also is not empowered to determine whether Grievant's
non-renewal was for "just cause," nor has she the authority to
determine whether the District's action was prohibited by statute.
The Arbitrator's role is simply to decide whether the District violated
Articles 12, 13, and 20 of the Agreement in the particulars set forth in the
The applicable standards for interpreting a collective bargaining
agreement are well settled. Where the language is clear and unambiguous, the Arbitrator
must give effect to the intent expressed in that language. That is so even where one party finds the result unusual,
unexpected, or harsh. Evidence of
past practice and bargaining history cannot be used to alter the plain meaning
of the language. However,
bargaining history and past practice can be used to shed light on ambiguous
language. To the extent that
disputed language is unclear, the party which proposed the language bears the
burden of establishing that its interpretation is correct and was adequately
communicated to the other party. A
party's unexpressed intent in negotiating a contract is of no import in
interpreting the language. Evidence
of past practice is persuasive as to the parties' intent only where the practice
is of long standing, well understood, and mutually concurred in by the parties.
Subsequent changes in contract language render past practice of less
utility in discerning the parties' intent.
Disputed language does not stand alone, but must be read and interpreted
as part of the contract as a whole. The
fact that disputed language is subject to more than one interpretation does not
necessarily mean it is ambiguous. Language
may be deemed clear even though the parties disagree concerning its meaning.
Where the language is susceptible to divergent interpretations, the
preferred interpretation gives effect to all contractual provisions and avoids
harsh or absurd results.
The recorded portions of the Level II hearing include multiple objections
to the failure to process complaints and references to other staff members.
Romoser pointed out that Steele's reference to the other staff member
in her remarks to the Board "leaves the unmistakable impression that another
staff member has a complaint against [Grievant]." When Williams sought to narrow the scope of the inquiry,
Romoser countered by stating that either of two theories could apply, one of
which was that complaints were presented without having been presented properly
under the Agreement. These
articulated concerns sufficiently presented the alleged violation addressed by
The undisputed facts provide a sufficient basis for resolving the
contractual issues presented. It is therefore unnecessary to resolve the conflicts in
testimony regarding factual details.
Article 20(A) requires the District, inter alia, to give notice
when particular materials will be considered in an evaluation or used against
the teacher in subsequent actions, even if the material is not included in the
official personnel file. Article
20(B) goes into further detail regarding materials in official personnel files. The crux of the dispute as to this language is the
significance of the later-added words "or a copy" in Article 20(B)(4).
No bargaining history exists regarding the genesis of this language, nor
is the evidence of past practice useful in fathoming its meaning.
No evidence exists that the Union knew of the District's practice under
this language or received notice when materials were added to files in the
ordinary course of events. We are
thus left with the plain language of the Agreement to consider.
The language of Article 20(B)(4) does not, on its face, suggest that a
teacher need not know that material will be added to the file.
In context, such a construction of the language would be at odds with
normal labor relations practices. The
ordinary distinction between a working file and an official personnel file is
that the employer considers materials in the official personnel file when making
evaluations, whether done formally or informally. If
the parties choose or agree not to make an entry in the official personnel file,
the incident ordinarily cannot be relied upon for later adverse action.
The District's reading of the provision would be anomalous because it
would place more stringent restrictions on the use of materials in working
files than those on the use of materials in official personnel files.
A simple example may illustrate the incongruity in the District's
interpretation of this provision. A
teacher who received a note from an administrator criticizing an action taken by
the teacher would face two alternative outcomes.
If the note was placed in the working file, but not discussed with the
teacher within ten working days, the District could not use it for evaluations
or other subsequent action. If
the note was placed in the official personnel file, the District could use it
for evaluations or other adverse action, even if the matter was not sufficiently
serious for the administrator to meet with the teacher over it.
A more logical construction is available for the addition of "or a
copy" to the language of Article 20(B)(4).
The addition of that language obviated any implication that the District
was required to give a separate written notice that a particular document was
going in the personnel file where the teacher otherwise knew the document was a
copy of a personnel file document. This
construction gives full effect to both portions of Article 20, and is
Finally, Article 20(B)(4) concerns more than just the review of file
materials in making a non-renewal decision.
The manifest purpose of such provisions is to give notice to the teacher
of those materials that are subject to use in later personnel actions.
The February 18 memo was used in the executive session and as a basis for
a negative rating in Grievant's annual evaluation.
She was not told the copy she received was going in her file.
In light of this omission, the District violated Article 20(B)(4) when it
thereafter placed the February 18 memo in her file without written notice.
The obvious intent of Article 13 is to prevent "building a
file" of complaints without getting the teacher's view.
Steele discussed with the Board complaints from other staff members.
None of those complaints came to Grievant's attention.
On the contrary, despite inquiry by the Association on February 13, the
District specifically declined to reveal the names of staff members who had complained
about Grievant. These complaints
were "used against" Grievant in a "subsequent action by the
District." The failure to
process those complaints under Article 13 thus violated the Agreement.
The Association has not asserted any other violation of Article 13 in
The requirement to evaluate "openly" under Article 12(B)(1)
must be interpreted with reference to the MOU that forms Appendix C.
The MOU begins with a broad rule proscribing evaluations "done in
a secretive manner." It then
addresses the separate but related problem of the use of student complaints
without giving the teacher a chance to respond as contemplated by Article 13. In
context, the provision regarding the solicitation and use of student opinion
does not define the entire scope of the term "in a secretive manner."
The bargaining history also suggests that the parties sought to address
more than the use of student comments in requiring "open" evaluations.
The Association sought to incorporate concepts of both
"openness" and "fairness" in evaluations.
Its initial proposals addressed the concern over the use of student,
parent, and staff complaints in a different paragraph.
It was the District which combined the two in its proposal to add the MOU.
No evidence exists that the District expressed to the Association an
intention to restrict the term "openly" to solicitation of student
The information Steele shared with the Board about the February 7 meeting
was not secret, except for the identification of the staff members who
complained. What was not "open" about the process was that the
event was used at all for any adverse action.
Steele and Luber had repeatedly assured Grievant and the Association on
February 13 that no adverse action would ensue because of the events discussed
in that meeting. Steele's later
unannounced decision to use the February 7 events as a basis to induce
Grievant's non-renewal therefore violated Article 12(B)(1).
Steele's comments also ran afoul of Article 12(B)(3).
The purpose of evaluations is to allow both the teacher and the
District to assess performance. Toward
this end, Article 12(B)(2) requires the establishment of goals, with the
criteria for those goals to be determined by "job description and
performance standards and any other concerns or basis for evaluation the
District wishes to consider." Under
Article 12(B)(3), evaluations must be made under those established criteria.
Contracts do not require such evaluation provisions simply to make a
paper record with no practical effect on the teacher's employment.
The detailed criteria for making and conveying evaluations define the
criteria under which employment decisions will be made.
The Agreement does not envision an evaluation process whereby the written
evaluation bears no relationship to the assessment presented to the body that
makes the employment decision.
Grievant effectively received two evaluations in her third probationary
year. The formal evaluation,
prepared at the end of the year, relied on documented incidents and evaluated
her according to established criteria (albeit with materials not properly
processed under the Agreement). The
other evaluation was delivered verbally by Steele at the Board executive
session. The Board did not see the
formal evaluation, nor did it have access to its contents.
Instead, it was the verbal evaluation upon which it relied in making its
non-renewal decision. The
Arbitrator will not elevate form over substance.
The verbal evaluation obviated any role for the formal written
evaluation. Therefore, the verbal evaluation that was actually used to
make decisions regarding Grievant's employment is the one to measure against the
requirements of Article 12(B).
Steele's comments induced the Board to act on a mistake of fact about the
agreed-upon resolution of the February 7 incident.
Luber and Steele assured Grievant and the Association that the February
13 meeting was neither disciplinary nor investigatory.
Despite these assurances, Steele presented the February 7 incident to
the Board as a matter which, but for the "unfortunate" timing, would
have warranted discipline, a plan of assistance, or a recommendation against
In fact, no plan of assistance ensued
simply because Luber and Steele agreed on a more positive course of action.
The Board, not knowing of the earlier decision not to take adverse
action, voted to non-renew Grievant's contract.
The verbal evaluation presented to the Board also contradicted Grievant's
documented work performance. Steele
asserted that Grievant had been under a memo of directives regarding her
communications with "everyone--other staff members, parents, and
students." In fact, the memo
of directives discussed Grievant's communications with parents and students,
but not staff.
Steele further asserted that Grievant had "power struggles with the
kids," as if that were an ongoing problem.
In fact, Steele documented "power struggles" with students
once--in Grievant's first-year evaluation.
In that same year, she observed Grievant's successful avoidance of a
student's attempt to engage her in a power struggle.
Nothing in any subsequent observations or evaluations suggested that
Grievant continued to have power struggles with students.
Steele's comments at the executive session can best be characterized as a
"wink and a nod." For the
record, she recommended renewal. All
of her comments other than those words were comments of the sort that would
ordinarily accompany a non-renewal recommendation.
Simply put, the act of going through the motions of preparing a formal
evaluation did not meet the requirement for an "evaluation in
writing," because the verbal evaluation nullified the written evaluation. Accordingly, the District violated Article 12(B)(3).
Article 12(B)(7) specifies the elements that must be included in any plan
of assistance the District imposes. Luber
and Steele agreed that Grievant's conduct did not warrant corrective action
beyond the February 13 meeting. In
these circumstances, the decision not to impose a plan of assistance did not
violate Article 12(B)(7).
The Association has not argued in this proceeding that the District
violated Article 12(B) in the manner alleged in Issue 3-d.
The concern over the divergence between the written and verbal
evaluations can be fully addressed by reference to the Agreement alone.
Accordingly, no merit is found to this allegation.
The remedy for the violations described above is to make Grievant
whole--that is, to put her where she would have been but for the breach.
The District must expunge the February 18 memo and non-renewal decision
from her personnel file. It must
prepare an annual evaluation for the 1991-92 school year that does not rely on
the February 18 memo. The ten-day
period for discussing complaints with a teacher under Article 13 has expired
with regard to complaints from staff during the 1991-92 year.
Therefore, the District cannot rely on such complaints in preparing the
revised evaluation or in other subsequent action.
Steele's comments in executive session visited losses on Grievant beyond
adverse entries in her personnel file and evaluation.
In voting for non-renewal, King explicitly relied on Steele's statement
that she would prefer not to have Grievant back.
Although Weatherly was Grievant's most vocal opponent in the
executive session, she would not have been uncomfortable voting to renew but
for Steele's comments. It is thus
more likely than not that the Board would have voted to renew without
reservations had Steele's comments more accurately reflected both the
agreed-upon resolution of the February 7 incident and Grievant's documented
This case does not arise under the "just cause" provisions.
Instead, it involves a series of breaches of other provisions, the
consequence of which was a non-renewal decision that would not otherwise have
occurred. Absent specific
contractual prohibitions on a particular remedy, the Arbitrator's remedial
authority extends to those measures which will fully remedy the breach.
In this case, only an order to reinstate Grievant can make her whole.
Accordingly, the District shall reinstate Grievant and make her whole for
loss of wages and other benefits arising out of her non-renewal.
Her status as a probationary or tenured teacher upon reinstatement is
governed by external law. The
Arbitrator retains jurisdiction over any dispute arising over the remedy.
Finally, Grievant had a duty to make reasonable attempts to mitigate her
losses. What constitutes
"reasonable" depends on the circumstances.
Grievant was at a severe disadvantage because of the circumstances of her
departure from the District. In
filling out applications, she had to report that her employment with the
District ended in non-renewal. Non-renewal
in the third probationary year creates a stigma for a teacher.
The response (or lack thereof) to those applications she made is
consistent with that stigma. She
was not required to engage in the futile act of applying to every school
district within arguable commuting distance.
In these circumstances, her attempts at mitigation were sufficient.
1. The District violated
Article 20(B)(4) by placing a copy of a memo dated February 18, 1992, in Dale
Kraus' personnel file without providing her with written notification.
2. The District did not
violate Article 13 (Complaint Procedure) when Principal Sherry Steele discussed
her concerns about teacher Dale Kraus with the school board during an executive
session on March 9, 1992 without following the procedural requirements of
a. The District failed to hold a
complaint conference or otherwise process the complaints about Dale Kraus'
communication style (as referred to by Kerry Luber and Sherry Steele) pursuant
to the requirements of Article 13.
3. The District:
a. Violated Section 12(B)(1) by
failing to conduct her evaluation openly when school district administrators and
board members discussed her deficiencies during an executive session.
b. Violated Section 12(B)(3) by
failing to prepare an evaluation in writing for Dale Kraus during 1991-92.
c. Did not violate Section 12(B)(7)
by failing to provide a written plan of assistance for Dale Kraus.
d. Did not violate Section 12(B) by
failing to follow the evaluation procedures contained in the Supervision and
Evaluation Manual adopted by the school board in June of 1989.
4. As a remedy, the District
shall take the following actions:
a. Expunge the February 18, 1992,
memorandum and the record of Grievant's non-renewal from her personnel file.
b. Prepare an evaluation for the
1991-92 school year that does not rely on the subject matter of the February 18
memorandum or of teacher complaints which were not discussed with Grievant
within the time limits provided in Section 13.
c. Reinstate Grievant and make her
whole for any loss of earnings and other benefits occasioned by her non-renewal.
5. The Arbitrator retains
jurisdiction over the remedy portion of this Award and over any dispute which
may arise thereunder.
DATED: November 17, 1992
LUELLA E. NELSON - Arbitrator
Association Secretary and Fifth Grade Teacher Carolyn Vandiver
testified that the parents in question were known in the school as troubled
parents. According to Vandiver,
the prior principal had dealt with such parent complaints without blaming
Grievant testified without contradiction that Luber had been in her
class briefly on two occasions, both times at her request.
In her testimony, Steele characterized Grievant's conduct on
February 7 as insubordinate. Regardless of whether one credits the District's version or
the Association's version, Grievant's conduct simply did not constitute
insubordination as that term is conventionally defined in the labor
Insubordination is commonly defined as a refusal to obey a bona
fide work order, with unequivocal notice of the consequences if such
refusal is maintained. No
evidence exists that any work order was given or refused at the February 7
meeting, nor was notice given that failure to comply with any such order
would result in discipline.
The memo of directives simply was not a plan of assistance for
purposes of Section 12(B)(7). On the contrary, Steele specifically informed Grievant that,
because of her performance under the memo of directives, she would not be
placed on a plan of assistance.
The only documented concern over communications with staff, and the
only concern of that sort that was discussed with Grievant, involved the
substance of her discussions with staff about changes in her department.
Steele did not find communications with staff to be a sufficient
concern to warrant a directive, or even to pass on these concerns to Luber.