1999 NAC 116 Poplar Public Schools and Poplar Education Association

Title: Poplar Public Schools and Poplar Education Association
Date: January, 1999
Arbitrator: Jack H. Calhoun
Citation: 1999 NAC 116

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1.2 Teacher Definition

Unless otherwise indicated, the term “teacher”, when used hereinafter in this agreement shall refer to all employees in the appropriate unit.

1.2 Appropriate Unit Definition

The appropriate unit shall consist of all district employees whose position requires certification under Section 20-4-106 with the exception of class three (3).

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Article IV Teachers’ Rights

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4.6 Just Cause

No 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: unpredictable.)

4.7 Uniform Application of Rules and Regulations

The district will make every effort to interpret and apply all rules and regulations governing employee activities and conduct uniformly throughout the district.

4.8 State and Federal Rights

Nothing 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.

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Article VII Grievance Procedure

7.1 Definitions

A. A grievance is a written and signed claim by a grievant that there has been a violation of the terms of the Agreement

B. A grievant is a teacher, or group of teachers, or the Association.

C. Days shall mean calendar days, except as otherwise indicated.

7.2 Individual Rights

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Step 1, Immediate Supervisor

The 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.

The 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 Arbitration

. . .

The 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.

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7.4 Exceptions to Time limits

The 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 . . .

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7.9 Jurisdiction of the Arbitrator

The 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 . . .

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Article VIII Staff Evaluation

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8.5 Number of Evaluations

Evaluation will continue regularly throughout the teacher’s service. The nontenure teacher will be observed at least twice yearly; all others, at least once yearly.

8.6 Post-Evaluation Conferences

The 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.

8.7 Personnel Files

Evaluation 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 this review.

8.8 Rebuttal to Complains in Teacher Files

Any 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.

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.

No 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.

Article IX Employment Status of Teachers

9.1 Consideration Prior to Nonrenewal (nontenure)

Prerequisite to the consideration of nonrenewal of contract of a nontenured teacher, the following steps will have been taken:

1) The person has been observed and written evaluation reports have been made at least twice during each year of service.

2) 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 shortcomings.

3) 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)

Every nontenured teacher being nonrenewed shall be entitled to all rights under law.

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9.4 Dismissal (Tenured and Nontenured)

Every teacher being dismissed before the expiration of the individual employee contract shall be entitled to all rights under the law.

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STATEMENT OF FACTS

Patrick 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.

Before 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.

On 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 his classroom.

On 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.

On 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.

On 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.

During 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.

On 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.

On 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.

Ms. 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.

On 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.

On 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.

On 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.

On 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.

In 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 violated.

On June 8, 1998, the board denied the grievance as untimely.

In 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).

The 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.

The District’s regulations provide that nontenured teachers will be evaluated twice each year with the first evaluation to be concluded by October 15^th and the second by March 1^st of each year.

The 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

The 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.

Where 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.

It 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.

The 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.

Porter 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 year.

The 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 arbitration.

The 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.

The 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.

The 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.

Article 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 them.

The 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.

The 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 year.

The 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 defenses.

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.

The 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

The 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.

Both 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.

The 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 year.

The 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.

It 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.

There 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.

The minutes of the 55^th 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.

It 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.

The 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 Porter.

The 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.

The 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.

Article 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.

The 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 tenure.

OPINION

The 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.

The 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.

It 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 (5^th ed. 1996).

Despite 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.

The 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 did.

The 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.

The 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.

The 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.

An 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 reasons.

McLinden 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.

In 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.

In 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:

The 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.

In 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.

The 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.

Contrary 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

party within the time limit. It does not permit evidence and argument in support of issues not properly before the arbitrator.

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.

To 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.

It 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 .

For 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.

The 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.