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Title: Lebanon Elementary School District and Lebanon Education Association 
Date: April 9, 1993
Arbitrator: Luella E. Nelson 
Citation: 1993 NAC 111

 IN ARBITRATION PROCEEDINGS

    PURSUANT TO AGREEMENT BETWEEN THE PARTIES

 

In the Matter of a Controversy

            between

LEBANON EDUCATION ASSOCIATION,

            and

LEBANON ELEMENTARY SCHOOL DISTRICT.

RE:             Grievance of Dale Kraus

 

 ARBITRATOR'S

  SUPPLEMENTARY

  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.

            The Arbitrator issued her Opinion and Award on the merits on November 17, 1992.  The Arbitrator retained jurisdiction over the remedy and any issues arising therefrom.  Thereafter, the parties notified the Arbitrator that they were unable to agree regarding certain aspects of the remedy.  The District filed its statement of position regarding remedy on March 12, 1993.  The Association filed its statement of position on March 18, 1993.

APPEARANCES:

            On behalf of the Association:

Margaret S. Olney, Esq., Bennett & Hartman, 851 SW Sixth Avenue, Suite 1600, Portland, OR 97204-1376.

 

            On behalf of the District:

Nancy J. Hungerford, Esq., Bischof, Hungerford & Witty, 653 S Center Street, Oregon City, OR 97045.

 

  BACKGROUND

            In the Opinion and Award on the merits, the Arbitrator issued the following 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 there under.

 

   REMEDIAL ISSUES IN DISPUTE

            The remedial issue presented for decision involves the preparation of a 1991-92 evaluation consistent with Paragraph 4.b. of the Award.  The District proposes to make three changes in Grievant's Evaluation:

            Remove:  "[Grievant] was recommended to be placed on tenured status."

            Remove:  "Non-renewed at the Board meeting 3/9/92; decision was upheld in hearing before Board on 5/27/92"

            Leave unchecked three boxes ("Continuation of Employment," "Termination of Employment," "Other") in place of checking the "Other" box.

The Association requests an order to the District to check "Continuation of Employment" and to remove all references to the February meeting.  The explicit reference to the February meeting appears on page 5 of the "Summative Evaluation Report:"

            Standard 34:  Clear and Positive Communication--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. [Italics added]

The Evaluation to which the "Summative Evaluation Report" is attached refers to this paragraph as an area requiring "additional development and growth."

      POSITION OF DISTRICT

            The discussion of Standard 34 is consistent with the Award.  The discussion does not rely on teacher complaints or refer to the February 18 memorandum.  It was based on Principal Sherry Steele's professional judgment about Grievant's communication.  The Arbitrator cannot "abridge" that judgment by concluding that Steele's concerns were unwarranted.  The only violation of the evalu­ation process was the communication shared with the School Board on March 9.  The evaluation relied on documented incidents and was completed according to established criteria.

            Even absent the February 18 memorandum, Steele and Director of Student Services Kerry Luber would have felt it incumbent upon them to mention Grievant's negative communication style in her evaluation.  They formed a professional opinion it was counterproductive to the communica­tion within the special services staff.  Grievant was never promised that her behavior in the February 7 staff meeting would not be reflected on her evaluation, only that it would not result in discipline.

            Deletion of references to Standard 34 in the Evaluation and Summative Evaluation Report would do more than make Grievant whole for the procedural violations.  It would do more than remedy the lack of "openness" in the evaluation procedure.  It would give her an evaluation which does not reflect her supervisors' professional judgment of her performance.

      POSITION OF ASSOCIATION

            Had the District not violated the Agreement, Grievant's employ­ment would have been contin­ued.  The evaluation should reflect that fact.  The remedy for lack of notice of the intent to rely on the February incident is to bar the District from in any way relying on the incident in future per­son­nel actions.  The District cannot rely on the underlying inci­dent addressed in the February 18 memo.  The District wants to accomplish through the back door what it cannot do through the front door.

            The Arbitrator should direct the District to delete all references to the February meeting and mark the evaluation, "continuation of employment."

       OPINION

            An arbitration proceeding is not an academic exercise.  Where a right has been violated, the Arbitrator must formulate a remedy within the bounds of the contract.  That remedy must, as much as possible, put the aggrieved party where it would have been absent the breach.  Where it cannot be determined precisely what would have happened absent a breach, the aggrieved party must receive the "benefit of the doubt."

            In the initial Opinion and Award in this case, the Arbitrator specifically observed that the evaluation relied on materials that were not properly processed under the Agreement.  The Arbitrator ordered the District to do what it should have done in the first instance--prepare an evaluation consistent with the Agreement and the District's due process obligations.

            The unannounced placement of the February 18 memo in Grievant's file was not a mere tech­nical violation.  In conjunction with the other conduct reviewed at length in the initial Opinion and Award, it had the substantive effect of nullifying Grievant's due process rights.  The subject of the February 18 memo is inseparable from the memo itself--and from Steele's remarks at the School Board Executive Session.

            The record does not establish that Luber would have felt constrained to review the events reflected in the February 18 memo in preparing Grievant's evaluation, but for the contractual breach.  He expressed a clear intention not to use these events as a basis for adverse action.  It is thus unlikely that he would have felt it incumbent on him to mention these events in a later evaluation.

            The contractual breach colors Steele's decision to mention the February events.  By the time she prepared the written evaluation, she had already suggested to the School Board that only the time factor had prevented implementation of a plan of assistance for Grievant.  The School Board, in turn, had relied on her verbal evaluation in voting not to renew Grievant's contract.  It would have been odd for the written evaluation to omit any mention of a basis for the non-renewal.  Defective though the documentation of those events may have been, they formed the basis for Steele's verbal evaluation.[1]  Absent the earlier breach, the record does not establish that Steele would have reviewed the February events in the written evaluation.

            The District shall remove all reference to the events discussed in the February 18 memo from Grievant's 1991-92 evaluation.  This remedy does not infringe on the authority to make professional and educational assessments of the staff.  It simply orders the District to undo the effects of its contractual breach.

            Neither party has discussed the practical effect, if any, of checking the "Continuation of Employment" box versus leaving all three boxes unchecked.  The practical effect of the order to reinstate was to continue Grievant's employment.  Absent a persuasive reason to the contrary, the evaluation should reflect Grievant's actual status.  Accordingly, the District shall check the "Continuation of Employment" box.

SUPPLEMENTARY AWARD

 

            The District shall delete all references to the events reflected in the February 18 memorandum from Grievant's 1991-92 evaluation and shall check the "Continuation of Employment" box.  The Arbitrator retains jurisdiction over any disputes which may arise regarding this remedy.

 

 

            DATED:  April 9, 1993

 

 

 

                                                                                                                                                                          

                                                                                                               LUELLA E. NELSON - Arbitrator


[1]           It cannot be determined when or why Steele decided to reverse Luber's expressed determi­na­tion to use the events underlying the February 18 memo only as an opportunity to "build bridges."  What is certain is that Grievant and the Association received no timely notice of this change in position.  On the contrary, they left the meeting believing that they had worked out their differences and that Grievant knew her place on the "team."  Their first notice of Steele's renewed concern came after the School Board Executive Session.

 

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