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Title: Lebanon Elementary School District and Lebanon Education Association
Date: November 17, 1992 
Arbitrator: Luella E. Nelson
Citation: 1992 NAC 105

 

In the Matter of a Controversy

            between

LEBANON EDUCATION ASSOCIATION,

            and

LEBANON ELEMENTARY SCHOOL DISTRICT.

RE:   Grievance of Dale Kraus 

 

ARBITRATOR'S

 OPINION AND AWARD

            

            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 parties.

            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.

APPEARANCES:

            On behalf of the Association:

 

Margaret S. Olney, Esquire, Bennett & Hartman, 851 SW 6th, Suite 160, Portland, OR   97204-1376.

 

            On behalf of the District:

 

Nancy J. Hungerford, Esquire, Bischof, Hungerford & Witty, 653 South Center Street, Oregon City, OR   97045.

 

 

             ISSUE

            The parties agreed to the following stipulated issues:

 

            1.         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?

            3.         Did the District violate any of these sections of Article 12 (Evaluation):

            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?

            b.         Section 12(B)(3) by failing to prepare an evaluation in writing for Dale Kraus during 1991-92? 

            c.         Section 12(B)(7) by failing to provide a written plan of assistance for Dale Kraus? 

            d.         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.         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:

            a.         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?

 

The 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

           ARTICLE 3

        GRIEVANCE PROCEDURES

          ...

          LEVELS OF GRIEVANCE

          ...

          Level Three - Binding Arbitration

          ...

          D.      ... The arbitrator shall be without power or authority to make any decision     which 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.....

          ...

           ARTICLE 4

          RIGHTS OF PROFESSIONAL EMPLOYEES

          ...

          E.      Just Cause

          ...

                   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.

          ...

        ARTICLE 12

     EVALUATION

          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.

                   ....  

        ARTICLE 13

       COMPLAINT PROCEDURE

 

          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.

                   ...  

          B.      During 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. 

          C.      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. 

          D.      The teacher shall have the right to attach any rebuttals or explanations to any written documents placed in the personnel file.

          ...

        ARTICLE 20

       PERSONNEL FILES

          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

 

                                          The teacher

                                          * Establishes appropriate standards in accordance with school and district policies for student behavior and communicates these clearly to students.

                                          * 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.

 

                                       Verification Procedures

 

                                      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 HUMAN RELATIONS

 

          STANDARD 32:  SHARED RESPONSIBILITY

 

                                        The teacher

 

                                         * 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 decisions.

 

                                       Verification Procedures

 

                                       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

 

                                           The teacher

 

                                          * 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.

 

                                       Verification Procedures

 

                                       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

 

                                          The teacher

 

                                          * Demonstrates skill in communicating clearly and positively with students, parents, staff, and patrons.

                                          * Is sensitive to parental concerns and seeks to offer assistance whenever possible.

                                          * Responds promptly to inquiries related to students or the school program.

 

                                      Verification Procedures

 

                                      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 PROGRESS

 

                                      The teacher communicates effectively with students and parents regarding the student's educational progress and needs.

 

                                      Verification Procedures

 

                                      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.

 

                                      Verification Procedures

 

                                       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 and attention.

                                       * 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

  OF

 TEACHING PERFORMANCE

          ...

          C. Evaluations (This section pertains to all non-administrative certificated staff members)

 

                      Probationary

 

                             Official notice of renewal or non-renewal of contract will be given by April 1.

                             Written evaluation ... will be completed and an evaluation conference held by June 10.

          ....

 

            FACTS

       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 Kerry Luber.

Grievant's First Year

       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 year.

       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 many referrals.

       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.[1]  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. ....

Grievant 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.

Grievant's Second Year

       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.

The 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.

Steele 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.

Based 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.

Steele 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 excessive verbalization.

The 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 issue.

       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 response.

       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.[2]  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 concerns.

       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 player."

       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 later.

       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.

 

       2.     I 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 misunderstanding.

       ...

       5.     I 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.

Romoser, 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 adverse action.

Grievant's 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 this comment:

       ... 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.

Other 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 District.

       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.

The 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. ....

The 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. ...

The 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.  Steele responded

       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.

One 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 -

She 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."  Steele responded

       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 meeting.

Steele 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.

The 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.

The 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]

Williams and Romoser then engaged in the following exchange:

       Williams:  ... [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 violation.

 

       Romoser:  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.  [Emphasis added]

Toward 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's Job Search

       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 substitute list.

Bargaining 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.

The 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

Article 20

       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.

Article 13

       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." 

Article 12

       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 expectations.

       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 been handled.

       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 others.

       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.

Remedy

       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 contract.

       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.

Article 20

       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 concession.

       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 requirement.

       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 members.

Article 13

       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.

Article 12

       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 decisions.

       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 problem.

       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 required.

       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 protection.

       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 contractually required.

The Remedy

       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 non-renewal decision.

       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 districts.

       OPINION

PRELIMINARY MATTERS

       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 issues presented.

       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.

Issue 2-a

       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 Issue 2-a.

THE MERITS

       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

       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 therefore adopted.

       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.

Article 13

       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 this proceeding.

Article 12

       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 complaints.

       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 renewal.[3]  In fact, no plan of assistance ensued[4] 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.[5]  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.

Remedy

       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 work performance.

       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.

 

          AWARD

 

 

       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 Article 13.

 

                  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


[1]     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 the teachers.

[2]      Grievant testified without contradiction that Luber had been in her class briefly on two occasions, both times at her request.

[3]      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 relations world.

            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.

[4]      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.

[5]      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.

 

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