Title: Poplar Public Schools and Poplar
IN THE MATTER OF THE GRIEVANCE
EDUCATION ASSOCIATION, )
DISTRICTS 9 AND
Board of Personnel Appeals
ASSOCIATION: FOR THE EMPLOYER:
UniServ Consultant Michael Dahlem
Education Association Attorney at Law
P O Box 1008
1986 Ridge Crest Drive
Montana 59330-1008 Whitefish, Montana
Poplar Education Association (the Association) and Poplar Public Schools (the
District) are parties to a collective bargaining agreement that sets forth
certain provisions that apply when non-tenured teachers’ contracts are not
to be renewed. The grievant,
Patrick McLinden, a second-year, nontenured teacher was denied renewal of his
contract by the District. The Association filed a grievance that went unsettled at
earlier steps in the grievance procedure.
Post-hearing briefs were filed and the case was considered submitted on
December 15, 1998.
parties were unable to agree on the issue.
Based on the evidence on the record and the arguments of the parties, I
have determined that the issue to be decided is: Did the District violate
Article 9.1 of the 1996-1999 collective bargaining agreement when it declined
to renew the contract of the grievant? If
so, what is the proper remedy?
RELEVANT CONTRACT PROVISIONS
following articles of the parties’ 1996-1999 collective bargaining agreement
are relevant to the issue in dispute or they were raised in argument by the
. . .
otherwise indicated, the term “teacher”, when used hereinafter in this
agreement shall refer to all employees in the appropriate unit.
appropriate unit shall consist of all district employees whose position
requires certification under Section 20-4-106 with the exception of class
. . .
. . .
4.6 Just Cause
teacher shall be disciplined, reprimanded, reduced in rank or compensation,
dismissed, terminated or deprived of any professional advantage in a
capricious or unfair manner. (Capricious
- inclined to change abruptly and without reason: erratic:
Application of Rules and Regulations
district will make every effort to interpret and apply all rules and
regulations governing employee activities and conduct uniformly throughout the
4.8 State and
contained herein shall be construed to deny or to restrict any teacher such
rights as he/she has under the laws of Montana and the United States or other
applicable laws, decisions and regulations.
The rights granted to teachers hereunder shall be deemed to be in
addition to those provided elsewhere.
. . .
A. A grievance is a written and signed claim by a grievant that there has been a violation of the terms of the Agreement
A grievant is a teacher, or group of teachers, or the Association.
Days shall mean calendar days, except as otherwise indicated.
. . .
1, Immediate Supervisor
grievant shall within twenty-one (21) days of the occurrence or knowledge of
the act or condition which is the basis of the complaint, present the
grievance in writing, to the immediately involved supervisor.
grievance shall be written on the appropriate grievance form (Appendix A) and
shall include a statement of the grievance, which articles(s) are in dispute,
and the requested remedy. . .
Step IV Binding
. . .
arbitrator shall not consider any argument or evidence that the grievant,
Exclusive Representative or School Board did not submit to the other side
seven (7) days before arbitration.
. . .
to Time limits
time limit set forth in the article may be changed by written agreement. If the grievant fails to file the grievance within the first
twenty-one (21) days as stated in Step 1, the grievance is forever waived . .
. . .
Jurisdiction of the Arbitrator
Arbitrator shall have no power to alter, add to, or subtract from the terms of
the Agreement. The arbitrator’s
decision will be based upon the specific provisions of this Agreement . . .
. . .
. . .
8.5 Number of
will continue regularly throughout the teacher’s service.
The nontenure teacher will be observed at least twice yearly; all
others, at least once yearly.
Evaluator shall hold a conference with the teacher within two (2) weeks
following the observation. At
this time a copy of the report will be provided to the teacher.
Each teacher will be provided definite, positive assistance to correct
professional difficulties and time to incorporate the recommended changes.
reports to be placed in the teacher’s permanent file shall be discussed
between the teacher and the evaluator and shall be signed by the teacher to
signify his/her notification that the item will be placed in the file.
The teacher shall be provided the opportunity to write a rebuttal to
the evaluator’s conclusion to be attached to the evaluation report.
Each teacher shall have the right, upon request, to review the
non-confidential contents of his/her personnel file.
All items relating to an individual teacher shall be kept in a single
official file. A representative
of the Association, at the teacher’s request may accompany the teacher in
8.8 Rebuttal to
Complains in Teacher Files
complaints regarding a teacher made to any member of the administration by any
parent, student or other person which may be used in any manner in evaluating
a teacher shall be promptly investigated and called to the attention of the
teacher will be given an opportunity to respond to and/or rebut such
complaint, and shall have the right to be represented by the Association at
any meetings or conferences regarding such complaint.
No material derogatory to a teacher’s conduct, service, character, or
personality shall be placed in the file unless the teacher has had an
opportunity to read the material and respond accordingly.
Any derogatory material not shown to a teacher within ten (10) days
after receipt or composition shall not be allowed as evidence in any grievance
or in any disciplinary action against such teacher.
derogatory material other than that contained in evaluations and documents
supporting comments in the evaluation shall remain in the file more than one
year. Teachers will be given
copies of any such supporting documentation at the time of the post-evaluation
conference and will have an opportunity for rebuttal.
Employment Status of Teachers
Consideration Prior to Nonrenewal (nontenure)
to the consideration of nonrenewal of contract of a nontenured teacher, the
following steps will have been taken:
The person has been observed and written evaluation reports have been
made at least twice during each year of service.
The observation and evaluation reports have been made by supervisors
who shared the reports with the person being evaluated.
Reasonable effort was made by the supervisor to: point out weaknesses,
and to recommend, in writing, reasonable and specific ways to overcome these
Any incident or situation that arose during the current school year,
that could possibly be cited as a reason for nonrenewal of contract, was
discussed with the teacher as soon after the incident or situation occurred as
was conveniently possible.
9.2 Notice of
Non renewal (Nontenured)
nontenured teacher being nonrenewed shall be entitled to all rights under law.
. . .
(Tenured and Nontenured)
teacher being dismissed before the expiration of the individual employee
contract shall be entitled to all rights under the law.
. . .
McLinden was employed by the District as an industrial arts teacher in the
high school beginning in September of 1996.
During his first year of employment with the District, Mr. McLinden did
not receive any written evaluations. He
was evaluated during October of 1996, but it was not a written evaluation.
At a meeting in 1998 between school officials and Association
representatives to discus McLinden’s grievance, the high school principal
asserted he had evaluated McLinden during the 1996-1997 school year.
He later stated he had not performed written evaluations of him.
the end of the 1996-1997 school year, the District offered Mr. McLinden a
contract for the 1997-1998 school year as a teacher of industrial arts in the
middle school. He had requested
the transfer to the middle school.
September 15, 1997, McLinden was reprimanded in writing by the middle school
principal, Phyliss Porter, for creating what she considered to be an unsafe
condition in his classroom when he had certain large shop machines moved into
his classroom. The same letter of
reprimand pointed out discipline problems and lack of control over students in
September 22, 1997, Ms. Porter observed Mr. McLinden’s performance as a teacher for
purposes of formally evaluating him. On
October 22, 1997, she signed the formal, written evaluation and gave it to
him. The evaluation indicated
eight areas where Ms. Porter felt he needed improvement, no areas where she
felt his performance was unacceptable, and eighteen areas where she felt his
performance met her expectations. In
her comments on the evaluation, Ms. Porter stated that rules were not posted
in the classroom and students did not stay on task.
She went on to comment that he needed to develop a discipline plan and
effective lesson plans. She noted
he had been observed to be controlled by events and crisis situations that
caused him great stress. In
summary, Ms. Porter said he was capable of doing a good job if he made a few
changes in his discipline plan. She
suggested he observe other shop teachers who were successful with their
discipline plans. Following the
evaluation, he developed and implemented a discipline plan and he observed
other shop teachers over a period of time during the year.
September 29, 1997, one of the middle school teachers, Anthony Shields, wrote
a memorandum to Ms. Porter about an incident where a student had allegedly
been shoved into a wall and shook by McLinden.
Porter took no formal action. McLinden
denied the allegation while testifying at the hearing.
October 27, 1997, Ms. Porter wrote a memorandum to Mr. McLinden expressing her
concern over his classroom discipline and treatment of students.
She said that if he could not discipline students without physically
assaulting them, he should seek help. She
threatened to recommend to the school board that his resignation be sought if
he did not seek help to control his emotional outbursts.
December of 1997, a complaint was filed with the District by a parent of a
student of Mr. McLinden. The complaint alleged he had used unnecessary force on the
student. On January 12, 1998, the
superintendent, Ms. Eaton, and others met with Mr. McLinden concerning the
allegation. McLinden denied any
knowledge of the allegation or having seen the letter that asserted the
allegation. Eaton said there was
not enough evidence to pursue the matter but warned him never to touch a child
again or she would seek his dismissal. McLinden
said he had no problem with that.
February 12, 1997, Ms. Porter observed Mr. McLinden’s classroom for purposes
of completing her second evaluation of his performance.
She did not give the formal, written evaluation to him until April 6,
1998. The evaluation indicated
his performance was unacceptable in almost all areas.
She stated he had problems with classroom discipline, whole class
instruction, and using time efficiently.
February 18, 1998, Ms. Eaton wrote a memorandum to Mr. McLinden to remind him
she had earlier given him an opportunity to respond to two different
allegations that he had used corporal punishment and physical contact in
disciplining students. She warned
him she would seek his dismissal if he engaged in such conduct.
McLinden gave her a written response to February 23, 1998, specifically
denying such conduct.
Porter formally observed McLinden twice during the 1997-1998 school year to
evaluate him as a teacher. She observed him informally several times, as often as twice
a week. She was concerned with
discipline and problems he was having with students including teaching and
safety. She believed he did not
have control of the classroom. She
did not give him her February evaluations for two months because she said she
wanted to give him the opportunity to correct the deficiencies she had pointed
out to him. She admitted she
should have given the evaluation to him earlier, but she said she was in
communication with him during the hiatus and talked to him about problems as
they arose. She admitted she
could have done more with respect to discussing with McLinden the incidents
and situations that formed the basis of her recommendation that his contract
not be renewed.
March 23, 1998, Ms. Porter wrote a memorandum to Ms. Eaton and the Board of
Trustees recommending that Mr. McLinden’s contract for the 1998-1999 school
year not be renewed. She said his
lack of organizational skills created an unsafe environment for students.
It was not until early April that McLinden came to know she had made
her recommendation. He received
written notice on April 6, 1998.
April 13, 1998, the Board of Trustees met to consider the recommendation of
Ms. Porter that Mr. McLinden’s
contract not be renewed. The
Association officer representing McLinden contended nonrenewal was improper
and in violation of the collective bargaining agreement because McLinden had
not received two written evaluations during the 1996-1997 school year.
April 16, 1998, Mr. McLinden received a letter from Ms. Eaton informing him
the board had decided not to renew his contract for the following school year.
The reasons were: (1) Lack of classroom control and ineffective
classroom discipline, and (2) poor organizational skills.
Two days later, Mr. McLinden wrote a detailed explanation of why he
believed the board’s action was not justified.
May 7, 1998, the Association filed a grievance alleging a violation of Article
9.1 of the collective bargaining agreement.
It stated that Mr. McLinden was not evaluated at least twice during
each year of service.
meetings during the processing of the grievance, Association representatives
contended that McLinden’s nonrenewal violated Article 9.1 because he had not
received two evaluations from the high school principal during the 1996-1997
school year. A June 3, 1998
letter from an Association representative to Ms. Eaton said the
Association’s position in the case was consistent with the clear language of
Article IX of the agreement, and that Article VIII was not the section
June 8, 1998, the board denied the grievance as untimely.
a letter dated October 15, 1998, to the District, the Association listed
additional articles of the collective bargaining agreement as issues for
arbitration. They were Articles
4.6, 4.7 and 4.8. The District
answered by asserting that not only were those inappropriately listed as being
in contention, but so was Article 9.1(2).
language of the pertinent part of the grievance procedure contained in the
collective bargaining agreement was adopted from a proposal made by the
District during negotiations for the 1996-1999 contract.
During those negotiations, the District did not convey to the
Association that the nonrenewal of a nontenured teacher could not be grieved.
District’s regulations provide that nontenured teachers will be evaluated
twice each year with the first evaluation to be concluded by October 15th
and the second by March 1st of each year.
issue put before the school board by the filing of the grievance and in
subsequent meetings between school officials and Association representatives
was whether the failure to give McLinden evaluations during the 1996-1997
school year was grounds for reversing the superintendent and principal’s
decision that his contract not be renewed.
POSITION OF THE DISTRICT
District contends that the only issue is whether the grievance alleging a
violation of Article 9.1(1) of the collective bargaining agreement was timely.
The Association did not allege that the District violated Article
9.1(1) during the 1997-1998 school year, rather it asserted throughout the
processing of the grievance that the District failed to provide Mr. McLinden
with two written evaluations during the 1996-1997 school year.
Any interpretation of Article 9.1(1) that permits a grievant to wait a
year before filing a grievance produces an absurd result not intended by the
parties. The grievance itself and
the subsequent clarification by the Association preclude consideration of
additional issues asserted for the first time at later dates.
The later assertions are not arguments or evidence in support of the
original grievance and they are not properly before the arbitrator.
a collective bargaining agreement contains clear time limits for filing
grievances, failure to observe those limits generally results in the dismissal
of the grievance without a decision on the merits.
In this case, the agreement requires that grievances be filed within 21
days or be forever waived. The
only grievance before the arbitrator is the one alleging a violation of
Article 9.1, failure to provide McLinden with two evaluations during the
1996-1997 school year. The grievance is untimely because it was filed after the 21
day deadline that began to run no later than the end of the 1996-1997 school
year when it was evident McLinden had not received his second evaluation.
is a rule of contract interpretation that contracts must be read in their
entirety so as to give effect to every provision on a given subject.
Doing so makes it clear that the language of Article 9.1(1) and (2)
reiterates the language of Articles 8.5 and 8.6 and that any alleged violation
of Article 9.1 must be subject to the same 21-day filing deadline that applies
to those articles. Were that not
so, the failure to evaluate in one year would require contract renewal one or
two years later even when good cause existed not to renew.
That result would extend greater job security to a nontenured teacher
than to a tenured one and would be inconsistent with 20-4-206 (3) MCA. Such an interpretation would encourage a grievant to lie in
wait until it was too late to legally remedy a breach.
District substantially complied with all provisions of Article 9.1.
It provided McLinden with two evaluations during the 1997-1998 school
year, Porter pointed out weaknesses and offered reasonable ways to overcome
them, and McLinden was made aware of incidents or situations that could be
cited as reason for nonrenewal. The
failure to hold timely post-evaluation conferences was never grieved.
The first time it was raised was one week before the arbitration
hearing. Performance feedback was
provided on an ongoing basis. No
grievance was filed over the failure to hold the conferences.
made numerous efforts to assist McLinden during the year.
The reasons given him for his nonrenewal were given him in his first
evaluation by her. He had been
made aware of serious performance problems throughout the 1997-1998 school
Association’s argument that Article 7.2, Step IV, paragraph 3 permits it to
modify its original grievance is without merit.
There is no rational basis on which to interpret the provision as
anything other than a rule of exclusion.
The language precludes consideration of new evidence or arguments in
support of a grievance that were not shared with the other party at least
seven days prior to the hearing.
Absent such language, new evidence or arguments could be introduced for
the first time at the hearing. Under
the guise of this paragraph, the Association is not free to allege new claims
without filing a new grievance and processing it through the grievance
procedure. The language in
question permits new evidence and argument related to the issues raised by the
original filing of the grievance. It
does not permit the bringing of a new grievance.
It does not permit the bringing of new grievances that were not filed.
Any other interpretation would render inoperative the time deadlines
and encourage the withholding of information to gain an advantage in
Association contends that the just cause standard applies to a decision to not
renew the contract of a nontenured teacher.
There is a legal question whether a school board may agree to a
provision requiring it to establish good cause prior to refusing to renew the
contract of a nontenured teacher. If
the Association’s interpretation of Article 4.6 is adopted, the article
would effectively grant tenure to nontenured teachers.
Association failed to establish any mutual intent of the parties to grant good
cause to nontenured teachers. Article
4.6 does not use the term “nonrenewal”.
The parties were aware of the legal difference between “dismissal”
and “nonrenewal”. They addressed them separately in Article 9.1 through 9.4.
Nowhere in Article 9.1 is “cause” used to describe the rights of
nontenured teachers. Absent a
clear intent to depart from the statutory rights conferred on tenured and
nontenured teachers, there is no justification for applying Article 4.6 in the
manner argued by the Association.
interpretation of Article 9.1 urged by the Association would produce an absurd
result in that a failure to evaluate in one year would require contract
renewal in subsequent years even where a school district could show complete
compliance with the collective bargaining agreement during that school year.
Such result would provide “super tenure” that would be lost when
tenure was attained. The
Association’s interpretation would encourage teachers not to report a
failure by their supervisors to conduct the required evaluations.
9.1(1) must be read in conjunction with Article VIII and the 21-day
requirement of Article VII. Article 9.1(1) recapitulates the requirements provided in
Article VIII and any alleged violation of Article 9.1(1) must be filed within
21-days from the notice of any adverse employment action taken in violation of
the article. Mr. McLinden did not
receive his post-evaluation conferences within two weeks of his evaluations as
required by Article 8.6; however, he did not file a grievance over such
failure within 21 days following his notice of nonrenewal and the matter is
not properly before the arbitrator. A
grievant who does not timely assert his rights can be said to have waived
District did not cite Article 7.2. Step IV, paragraph 3 of the agreement as
the basis for its right to have the arguments and evidence heard in
arbitration. That right is
inherent in the arbitration process. The
language of the provision was intended to exclude evidence and arguments not
timely conveyed to the other party. The language does not waive the contractual deadline for
filing a grievance nor does it permit the submission of evidence and argument
in support of claims not properly before the arbitrator. There is no need to
construe the language against the drafting party because it is not ambiguous.
District acknowledges McLinden did not receive two written evaluations during
the 1996-1997 school year as required by Articles 8.5 and 8.6.
McLinden testified he received one written evaluation during his first
Association asserts that the only reason the District provided for denying the
grievance was that it was untimely. That
is true because the grievance was a violation of Article 9.1(1),failing to
provide McLinden with two written evaluations during 1996-1997 school year.
Only after the Association raised new claims did the District offer new
issues may be raised at arbitration if they speak to the merits of the
grievance; however, new the issues raised by the Association did not speak to
the merits of the grievance filed on May 7, 1998.
The failure to file a grievance alleging a violation of Articles 4.6,
4.7, 4.8, 8.5, 8.6 8.8 and 9.1(2) and (3) deprives the arbitrator of authority
to consider such allegations. The
purpose of filing a grievance is to fully inform the employer of the nature of
the problem so it can make whatever defense available.
Failure to do so until after all grievances procedures are finished,
will result in a denial of consideration at arbitration.
At no meetings did the Association representatives allege a violation
of any of the articles cited above.
District lawfully entered into a collective bargaining agreement that
established certain procedural requirements prior to the nonrenewal of a
nontenured teacher which, if violated, may be grieved.
Any grievance; however, must be filed in accordance with the time
deadline established in the agreement. Whether
a school board may enter into a contract requiring just cause prior to the
nonrenewal of a nontenured teachers is an open question that need not be
answered in this case because there is no evidence that the parties intended
Article 4.6 to apply to such decisions.
POSITION OF THE ASSOCIATION
Association contends the grievance was timely filed within 21 days after Mr.
McLinden was notified his contract would not be renewed.
It was the nonrenewal of the contract that was the act giving rise to
the grievance. It was the first
clear and overt act sufficient to provide notice to him.
Within 21 days after receiving notice that the District had not renewed
his contract, a grievance was filed. The
April 16, 1998, nonrenewal letter was the act that give rise to the grievance.
parties cited the same provision in the agreement when they exchanged
additional arguments and evidence seven days prior to the hearing.
This allowed the parties ample time to prepare for the hearing.
An issue not discussed prior to the hearing may be permitted if it
speaks to the merits of the grievance before the arbitrator, but not if it is
simply a collateral complaint. The
issues raised by the Association go to the heart of the matter, speak directly
to the merits of the grievance and are not collateral complaints. Neither party suffered prejudice by being precluded from full
opportunity to advocate and defend its position.
Association cited Article 9.1(1) in the original grievance because there were
no evaluations on record for the first year of McLinden’s employment.
The District raised only one defense stating the grievance was
untimely, the grievance should have been filed during the 1996-1997 school
Association should prevail because Article 9.1 mandates three requirements be
met before a nontenured teacher can be denied renewal.
Knowing that the arbitrator would likely limit the issue raised and the
defense offered and would interpret the clear language of Article 9.1, the
District conveyed to the Association additional provisions of the agreement
the District would rely on in defense of its decision.
The provisions were Articles 9.2 and 9.4, which were never raised in
grievance meetings with the Association.
The arbitrator cannot allow the District to add to the defense of the
original grievance without allowing the Association the same right.
is a standard rule of contract interpretation that ambiguous language will be
construed against the party who proposed or drafted it.
Article VII language was proposed by the District and accepted by the
Association during negotiations for the 1996-1999 agreement.
is ample precedent (citing cases) to support the Association’s position in
this case. The District has
agreed to abide by its contractual obligations regarding the nonrenewal of
nontenured teachers. Those obligations are set forth in Articles 4.6, 8.5, 8.6,
8.8 and 9.1 (1-3). The process of
review is Article VII.
minutes of the 55th Legislature’s Committee on Education and
Cultural Resources indicate that it was the committee’s intent to resolve
nonrenewal and termination decisions through contractual binding arbitration
procedures, where such procedures existed and that upon proper notice,
nontenured teachers could be nonrenewed at the end of their contract period
with or without cause, in the absence of a provision in the collective
bargaining agreement to the contrary. There is no doubt the agreement between the parties here
contains such a provision.
was McLinden’s right under the terms of the agreement to be evaluated twice
each year and to have the evaluations done in accordance with the provisions
of the agreement. It was his
right to be made aware of any reason that might be cited as a reason for his
nonrenewal as soon as conveniently possible but no later than ten days after
complaints were received. It was
his right to retain his teaching contract unless the District had just cause
to nonrenew the contract. It was
the District’s responsibility to carry out those rights.
It did not do so.
District’s contention that it substantially complied with the requirements
of Article 9.1 is not enough. The article mandates two written evaluations each year and a
discussion with the teacher over any incident that could be used as a reason
for nonrenewal. There were no
written evaluations of McLinden the first year and the District did not supply
the 1997-1998 evaluations in accordance with the agreement.
The second evaluation was received by him less than a week before
Porter recommended his nonrenewal. There
was only one written recommendation for improvement given to McLinden by
letter of reprimand issued to McLinden in February of 1998 came almost six
months after the alleged incidents and over one month after he was notified of
the allegations in a meeting with Porter and Eaton.
The reprimand referred to allegations of wrong doing by McLinden, there
was no proof that the allegations were facts.
Moreover, the District’s attorney said there was not enough
corroboration by witnesses to pursue the matter.
District maintains it complied with the evaluation requirements of Article 9.1
by performing two evaluations on McLinden during his second year of
employment. That article does not
create a separate evaluation procedure. In
order to determine whether the District properly evaluated McLinden, the
specific requirements of Article VIII must be considered.
McLinden did not receive his evaluation reports in a timely manner
within two weeks following observation. The
evaluator did not provide definite, positive assistance to correct
professional difficulties noted in the February 12, 1998 evaluation or time to
incorporate recommended changes. The
reasons given for nonrenewal were not discussed with him as soon after the
situation occurred as was conveniently possible.
4.6, just cause, applies to all teachers irrespective of tenure and whether
they are nonrenewed, dismissed or terminated.
Mr. McLinden was not afforded just cause.
No notice was given, no help was offered and no time given to change.
specific language in Articles 1.2, 1.3, and 7.1 support the Association’s
arguments that nontenured teachers are not prohibited from grieving nonrenewal
decisions. All provisions of the
agreement should be applied without respect to whether one has attained
grievance was timely filed within the 21-day period stated in the grievance
procedure. The act that formed
the basis for McLinden’s complaint was not the failure of the high school
principal to evaluate him during the 1996-1997 school year, but the decision
by the Board of Trustees to uphold the recommendation of the middle school
principal and superintendent that his contract not be renewed.
It was at that time the District acted to his detriment.
Generally, consideration of a grievance should not be denied unless to
do so would violate the collective bargaining agreement.
No such violation is involved here.
Moreover, the clear language of the first step of the grievance
procedure permits the filing of the grievance when the grievant knows of the
act or condition that is the basis for the complaint.
grievance alleged a violation of Article 9.1 of the agreement and stated that
McLinden did not receive at least two evaluations during each year of service.
It was in writing, stated the article in dispute and the remedy sought
as required by the grievance procedure. As
the grievance was being processed through the steps of the procedure, an
Association representative reiterated the assertion made in the original
grievance and stated that it was Article 9.1 of the agreement that was
violated, not Article VIII.
should be noted that formal and concise pleadings are not required in
arbitration. Grievants are not
bound rigidly at arbitration by ineptly worded grievance statements.
If the grievance sufficiently apprises the employer of the nature of
the complaint and contract violations are found, the grievance should stand. Only when one party materially changes its position in such a
way that the other party is surprised or finds it difficult or impossible to
present its case, should the arbitrator take appropriate action such as
granting a continuance. Elkouri
and Elkouri, How Arbitration Works,
at 329-330 (5th ed. 1996).
the disclaimer registered by the Association representative, Article 9.1 must
be read in conjunction with Articles 8.5 and 8.6.
The basis for the Article 9.1 requirement regarding consideration prior
to nonrenewal is evaluations. Articles
8.5 and 8.6 address how these evaluations are to accomplished.
One cannot give a meaningful interpretation to Article 9.1 without
considering Articles 8.5 and 8.6. As
the District argues, the language of Article 9.1(1) and (2) reiterates the
language of Articles 8.5 and 8.6. Contrary
to the District’s argument, however, the 21-day filing period began when the
District notified McLinden his contract would not be renewed.
District urges that the grievance was not timely because the failure to
evaluate occurred more than a year earlier and did not result in any adverse
employment action inasmuch as McLinden was offered a contract for the
1997-1998 school year. It cannot
be known what effect evaluations by the high school principal might have had
on McLinden’s future behavior as a teacher.
Had they been done in the spirit and for the purposes suggested by
Article VIII, he might have had less difficulty his second year.
On the other hand, he may have performed exactly as the record shows he
important point is that the contract requirement that evaluations be completed
as set forth in the agreement is there because it is a procedural safeguard.
Collective bargaining agreements contain provisions such as Article 9.1
for the purpose of insuring that employers make certain considerations before
they act to an employee’s detriment. There
cannot be serious doubt that the District’s decision not to employ McLinden
after the 1997-1998 school year was to his detriment.
It was the equivalent of a termination.
evidence on the record in the instant case supports the conclusion that the
District failed to observe contractually mandated procedural requirements when
it decided not to renew McLinden’s for the 1998-1999 school year.
The high school principal did not evaluate him at all during
McLinden’s first year. The
District argued he received one written evaluation; however, the evidence on
the record shows he did not receive any written evaluations the first year.
middle school principal failed to confer with McLinden within two weeks
following her observation of him as required by the agreement.
She gave him his first evaluation over a month after the classroom
observation. She gave him his
second evaluation three months after observing him.
Her tardiness amounted to a technical violation of the procedural
requirements of the parties’ collective bargaining agreement.
There can be no doubt the agreement’s procedural requirements were
not followed prior to the District’s decision not to renew McLinden’s
contact for the 1998-1999 school year.
important question is whether, despite the procedural violations, there were
substantive reasons supported by the evidence on the record for the District
to refuse to renew McLinden’s contract of the 1998-1999 school year.
My review of the record compels the conclusion that there were such
received repeated warnings and notices of difficulties in his performance
during the 1997-1998 school year. In
September of 1997, he was reprimanded for creating an unsafe condition in his
classroom and failing to handle on going discipline problems.
In her first evaluation of him, Porter pointed out areas that needed
improvement, noted student discipline problems and cited his temper problem.
October of 1997, Porter warned McLinden about his physical roughness toward
students and suggested he control his emotional outbursts.
In her second evaluation of him, Porter again pointed out McLinden’s
deficiencies with respect to maintaining discipline, instructing students and
managing time. Porter frequently
visited McLinden’s classroom because he was more of a concern than any of
the other teachers under her supervision.
McLinden believed Porter was sincerely trying to help him.
He had to be removed from his classroom on occasion because he could
not control his temper.
their treatise entitled Remedies in Arbitration, the authors devote a chapter to procedural
violations and how arbitrators have dealt with them in reviewing
irregularities in the administration of
collective bargaining agreements. They
note the different approaches taken by arbitrators in fashioning remedies.
The better approach, in my view, is as they summarize:
third approach (that any failure to observe procedures will be penalized)
recognizes that procedural requirements are important and that any failure to
comply will be penalized, but will not thereby render the action void.
This approach, argues Fleming, has been taken by most arbitrators.
To encourage future compliance, one remedy is not to reinstate the
grievant, but rather to order the employer to pay the grievant back pay from
the date of the violation to the date of the award because it failed to follow
the procedural requirements of the contract.
According to Fleming, the outrage will most likely assure the
company’s making sure that the contract is followed in the future . . .
Hill and Sinicropi, Remedies in
Arbitration, 1991 BNA 2nd ed. At 263.
the instant case, as in almost all cases where teachers and school
administrators are involved, it is apparent that performance evaluations and
the bargained for procedures for giving them are important to both parties.
Timely and meaningful evaluations performed in accordance with the
provision of an agreement are often conditions precedent to termination or
nonrenewal. It is the
responsibility of managers and supervisors to initiate and complete
evaluations when the agreement calls for them.
Individual teachers are in no position to keep track of or demand that
evaluations be timely completed by their superiors.
Association raised a multitude of issues after the original grievance had been
filed and processed through lower steps in the grievance procedure.
Other than Articles 8.5 and 8.6 that I have discussed above, the
additional issues were not collateral, they were new and, therefore, not
timely raised. The District did
not base its response to the grievance on those new issues.
If the Association wanted to contend that McLinden’s nonrenew after
the 1997-1998 school year was governed by the just cause standard set forth in
Article 4.6 of the collective bargaining agreement, it should have stated that
contention on the grievance or at a minimum raised it as an issue during the
processing of the grievance. Instead,
the Association representatives who handled the matter initially declined to
assert any other violation of the agreement than Article 9.1.
In fact, the individual who handled the local Association’s grievance
specifically disclaimed other assertions under the agreement.
To raise the allegation of a violation of a new article of the
agreement after putting the District or notice that only Article 9.1 was at
issue, was too late. The District
did not have sufficient notice and the allegation was not made timely.
to the Association’s argument, Articles 7.2, Step IV, paragraph 3, of the
agreement does not form the basis for the parties’ right to have their
evidence and argument heard in arbitration.
The language was meant to exclude evidence and argument that were not
submitted to the other
within the time limit. It does not
permit evidence and argument in support of issues not properly before the
District argues that an interpretation of the collective bargaining agreement to
mean that a failure by the District to evaluate a teacher in one year would
require contract renewal one or two years later when the District had good cause
not to renew a contract. The
District also contends that if a teacher is permitted to wait one or two years
before alleging a violation, a fundamental purpose of the agreement would be
frustrated. It would encourage the
Association and teachers not to file grievances when a violation occurs, but lie
in wait until it is too late to remedy the breach except by abrogating the
school board’s right to hire and fire teachers.
those arguments, suffice it to say, the District agreed to the clear and
unambiguous terms of Article 9.1 of the parties’
agreement. That Article requires at
least two written evaluation reports during each year of service before
consideration of nonrenewal of a nontenured teacher.
In the instant case, the supervisors failed to do so and they failed to
perform post-evaluation conferences promptly.
This decision is based on my interpretation of Article 9.1.
How that may affect the District’s constitutional and statutory rights
and obligations is not a part of this decision.
The District could avoid such perceived difficulties by insuring that its
managers and supervisors abide by the procedural requirements of the agreement.
is elementary that where the collective bargaining agreement does not expressly
state what remedy is to be applied, the power to determine whether there has
been a contract violation carries with it the implied power to grant a remedy
when a violation is found. Unless
there is restrictive language that withdraws certain subject matter or a
particular remedy from the jurisdiction of the arbitrator, the arbitrator
possesses the power to make the award and fashion a remedy, even though the
agreement is silent on the issue of remedy .
the reasons set forth, I find that the District violated Article 9.1 of the
1996-1999 collective bargaining agreement. Accordingly, I will enter an award.
grievance is sustained. The District is hereby ordered to make back pay to Patrick
McLinden in the amount of what he would have earned with the District if he had
been employed from the beginning of the 1998-1999 school year to the date of
this award. Patrick McLinden is not
to be reinstated.
Dated this ____day of January 1999.
Jack H. Calhoun
Post Office Box 8173 Portland, OR 97207Phone: 877 399-8028