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Title:  Multnomah Educatin Service District Association and Multnomah Education Service District
Date: January 12, 1999
Arbitrator: David Pesonen
Citation: 1999 NAC 124

The Decision is only a sample the full file can be found at the ERB (Employment Relations Board) office in Salem, OR

In the matter of :

Multnomah Education Service
District Association
(Shannon Henry, Ms. Henry)       

                  and                                                                       

Multnomah Education Service
District (Respondent)

Arbitrator’s Decision

            This matter came on for arbitration at the offices of Respondent Multnomah Education
Services District (hereafter, “District” or “MESD”) on November 17, 1998.  Grievant Shannon Henry  was represented by Mr.  Mike Persons of the Oregon Association of Classified Employees, Oregon Education Association, which encompasses the Multnomah Education Services District Education Association (“Association”).  Respondent District was represented by Bruce Zagar, Esq. of the firm of Garrett, Hemann, Robertson, Paulus, Jennings & Comstock, P.C.  Evidence both documentary and by sworn testimony was received.  The parties requested that the matter be submitted for decision on post-hearing briefs, to be mailed on December 18, 1998.  Such briefs were timely received by the arbitrator and the matter stands submitted for decision as of December 21, 1998.

            Under the Agreement between the District and the Association (hereafter “Agreement” or “Contract”) the arbitration  proceeded under the American Arbitration Association Rules.[1]  The Agreement provides for an orderly progression of informal efforts at dispute resolution, beginning with Ms. Henry’s immediate supervisor and concluding in binding arbitration if the dispute cannot be resolved by such intermediate proceedings.  It appears that  these intermediate proceedings have been pursued (Exhibits A-11, A-14, A-15, D-9) and that the matter is properly subject to arbitration under the Agreement.

            The issue presented for arbitration is whether the District violated the provisions of  Article 15, Member Work Calendar, sections A and B; Article 23, Professional Compensation, section A (Salary); or Article 27, Other Paid Leaves, subsection A, 7 (Professional Visitation) when it denied Ms. Henry’s request for three days of discretionary professional visitation leave to attend an out of state conference at her own expense.   This issue arises from a cluster of facts surrounding Ms. Henry’s request for leave to attend and her attendance at a conference within the scope of her professional position with the District, to be held in Minneapolis during the week of  October 21-24, 1997.

            Ms. Henry’s specialty is occupational therapy for developmentally disabled students; she has a special interest in “assistive technology,” the use of computers to aid in the development of communication skills.  Sometime in the Spring of 1997 she and several other teachers in the District with similar specialties proposed that they attend an educational conference addressing their specialty, to be held in Minneapolis during the week of October 20-24, called “Closing the Gap.”     Ultimately, the Superintendent approved travel reimbursement for three persons to attend the conference at District expense but excluding Ms. Henry. 

            Nevertheless, Ms. Henry elected to attend the conference at her own expense.  She contends that she was informed by her immediate supervisor, Carol Whitten, that three of  the five conference days could be treated as “Professional Visitation,”[2] thus entitling Ms. Henry to be paid for those days; the other two days would be unpaid.  Ms. Henry was disappointed that her expenses would not

be covered.  Sometime during the first week of October, after Ms. Henry had purchased her air fare and paid her registration totaling approximately $1300,  she informed Carol Whitten that she was contemplating another position with a different District, Northwest ESD.

The District correctly asserts that professional visitation leave is discretionary with the employee’s immediate supervisor.  However, it would be inequitable and contrary to the purposes of the Agreement if discretionary approval could be arbitrarily revoked once an employee has made a substantial and detrimental change of position in reliance upon it.  In the past oral approval has been sufficient to support an employee’s use of professional visitation time, so long as written documentation is ultimately processed. 

The key issue of fact in this arbitration is whether Ms. Henry’s immediate supervisor orally approved  Ms. Henry’s attendance at “Closing the Gap” with credit for three days’ professional visitation leave, thereby causing Ms. Henry to rely upon such approval to her detriment, and then revoked the approval after Ms. Henry had incurred substantial expense in reliance on the oral approval.

            The evidence on this issue is largely circumstantial and not without conflict.  On September 30, 1997, after Ms. Henry had incurred the expenses of her attendance at “’Closing the Gap,” Carol Whitten signed Ms. Henry’s “Pre-Evaluation Conference Agenda.”  This preliminary to Ms. Henry’s annual job performance evaluation recited that her “job description” included “To attend national conference—Closing the Gap—and present information to the motor team.”    (Exhibit A-5)  Accomplishing the goal embodied in this job description was also set forth in the Agenda, to be evidenced by Ms. Henry’s presenting “information [from the Closing the Gap conference] to motor team during monthly meeting.”  The proper inference is that Ms. Whitten concurred in this specific goal as part of Ms. Henry’s job and her future performance evaluation.[3]  As a condition of Ms. Henry’s approved absence to attend the conference on paid time, Carol Whitten required Ms. Henry to obtain the approval of the principals of two schools which Ms. Henry served; Ms. Henry did so and Carol Whitten took steps to arrange for a substitute teacher for Ms. Henry’s schedule during her absence at the conference. 

Further circumstantial evidence  involves the  disposition of Ms. Henry’s formal application on the “MESD Leave Request Form.”  Ms. Henry maintains that after she was informed that only three of the five days would be approved for professional leave, she submitted to Carol Whitten this required paperwork, to document such approval before she left for Minneapolis. This form clearly provides for the supervisor to check a block labeled “Approved” or “Disapproved.”  On an earlier occasion involving professional visitation leave, Carol Whitten had  returned to Ms. Henry the appropriate copy of an MESD Leave Request Form with the “Approved” block checked (Exhibit A-1).   In the instant case, however, the form was never returned to Ms. Henry, although Carol Whitten acknowledges that she received the form filled out indicate three days professional visitation leave for October 22, 23 and 24  (Exhibit D-4).  Carol Whitten testified that it was her practice to discard such forms if the leave applied for was disapproved and that she destroyed or  discarded the form submitted by Shannon Henry.[4]  She claims to have informed Ms. Henry of the disapproval by voicemail.  Ms. Henry denies receiving such a voicemail message. 

This conflict in the evidence must be resolved against the District.   If in fact  Ms. Henry’s request was disapproved, it was solely within the control of the District through Carol Whitten to make such disapproval emphatic and unambiguous.  The need for such clarity was particularly great in light of the earlier communications between Ms. Henry and her supervisor concerning treatment of Ms. Henry’s time during her attendance at the conference, particularly since attendance at the conference was the centerpiece of Ms. Henry’s future job performance evaluation that had been agreed upon only two or three weeks earlier.

After Ms. Henry returned from the conference she submitted a timesheet for the period from mid-October to mid-November, which recorded October 20-21 as “non-contract” and October 22-24 as three contracted days and also categorized the three days as “PV” or professional visitation.  Sometime later this sheet was returned by Carol Whitten with the three contract days redacted to non-contract (unpaid) days and the “PV” designation whited out (Exhibit A-8). 

More or less concurrent with this event, Ms. Henry’s annual calendar of work days for the school year was revised by Carol Whitten.  This calendar is a contractual requirement under the Agreement and is a part of each classified  employee’s employment contract.  (Agreement, Art. 15, Para. A.)  As negotiated at the beginning of the contract year, the week of October 20-24 was designated as 5 regular contract days.  On October 3rd, Carol Whitten redacted a copy of the calendar to remove the “contracted” designation for these 5 days and to add 5 days at the end of the calendar in June 1998.  However, this redaction failed to indicate the status of the 5 days in October (Exhibit A-7).  Then on October 15th, two or three days before Ms. Henry left to attend the conference and several weeks after Ms. Henry had incurred the expenses of attending, Carol Whitten redacted Ms. Henry’s calendar again, this time adding a marginal note:  “nc 10/20-24” designating those days as “non-contract.” (Exhibit A-9)  Ms. Henry contends that these various revisions were not brought to her attention until after this dispute had arisen.

The Agreement provides that once the employee’s work calendar has been negotiated at the beginning of the school year, it becomes a part of the work contract and may only be changed for the following reasons:  (1) to accommodate changes in the calendar of “constituent school districts”; (2) “for other necessary or unavoidable reasons”; or (3) “by mutual agreement between the member and his/her immediate supervisor with the approval of the appropriate Cabinet member.”  There is no evidence on this record that either of the first two of these reasons was contemplated by Carol

Whitten when she made the changes reflected in Exhibits A-7 and A-9.  As for the third contractual reason for these changes, the evidence is in conflict respecting “mutual agreement” and there is no evidence of ratification by a Cabinet member.

            While these events were transpiring, Carol Whitten’s supervisor, Barbara Jorgensen, the next higher level in the administrative structure, had conferred with the Superintendent, Dr. Edward Schmitt, concerning his policies as a new Superintendent of the District, including his policy regarding professional leave.  Barbara Jorgensen testified that Superintendent Schmitt stressed that for budget reasons he wished to cut down on the number of employees using  professional visitation leave and reimbursed travel and that he expected the District to benefit from such attendance by requiring the attending employee  “to return and share” the results of such professional development with other specialists in the District. 

The sequence of events most reasonably to be inferred from this circumstantial evidence is that Carol Whitten initially approved three days of professional visitation leave for Ms. Henry’s attendance at the conference; sometime shortly thereafter she conferred with her supervisor, Ms. Jorgensen, and informed Ms. Jorgensen that Ms. Henry was seriously contemplating an offer of employment with Northwest ESD;  that in light of her recent conference with a new Superintendent, Ms. Jorgensen directed Ms. Whitten to deny Ms. Henry’s professional visitation leave; that this put Ms. Whitten in an awkward position, knowing as she did that Ms. Henry had already been led to believe otherwise and had expended significant sums in reliance thereon.  It seems most likely  that Ms. Whitten  sought to follow Ms. Jorgensen’s direction by indirect means involving alteration of Ms. Henry’s time card and disposal of the leave request form.  

            The District maintains that Ms. Henry’s use of three days professional visitation leave to attend the conference could not have been approved by Ms. Whitten because the conference was out of state, requiring the Superintendent’s approval.  The District did not advance this argument until after Ms. Henry has submitted her grievance to the District on December 18th and after she had resigned from the District to take the position with Northwest ESD.  The first documented instance in which this defense was suggested came in a December 22nd memo from Ms. Whitten to Ms. Jorgensen, reciting Ms. Whitten’s account of the events leading up to the grievance.  She states, without reference to any policy document, that “Board Policy requires Superintendent’s approval to travel out of state.”  (Exhibit D-16).  However, Board policies are at best ambiguous on this issue.  The specific policy introduced on this issue by the District,  the MESD “Travel Procedure” policy memo,  addresses only “authorized travel subject to reimbursement.”  (Exhibit D-7).  A common sense reading of the entire policy memo is that it is relevant only to employees seeking reimbursement for travel expenses and does not apply to the level of approval required for professional visitation leave apart from the issue of reimbursement.  In other words, if the leave only affects the calendar and work scheduling, matters at the center of day-to-day administration, there is no reason to require higher authorization than the employee’s immediate supervisor.  But if the issue implicates the District’s budget it properly requires authorization at a higher level responsible for budget decisions. This conclusion is buttressed by the Agreement, which provides only for approval of professional visitation leave by “the immediate supervisor,” in this case by Carol Whitten. 

Finally, the District has not been consistent on this issue throughout the informal dispute resolution steps that preceded this arbitration.  Barbara Jorgensen’s January 14, 1998 response to the grievance  makes no mention of the asserted policy requiring the Superintendent’s approval for out of state travel; it bases her denial solely on the ground that “I find no violation [of the Contract] due to the fact that these [three professional visitation] days are granted under supervisor approval only, and Carol did not approve leave for you to attend.”  (Exhibit D-2).  At the next level, the Superintendent’s March 11, 1998 letter denying the grievance,  the District’s position is still that only Carol Whitten’s approval was required.  After first noting that he had on his own “further investigated” the circumstances, thus necessarily knowing that the leave request applied to out of state travel, the Superintendent asserts as his reason for denial that “You needed her [Carol Whitten’s] approval of professional visitation leave to attend the conference.”  (Exhibit D-5, p.1)  The only reference to Superintendent approval in this communication is in response to Ms. Henry’s alternative claim that she had suffered discrimination with respect to reimbursement of expenses.  (Exhibit D-5, p. 2)  Finally, at the Board level, the denial letter to Ms. Henry from the Board Chair gave as its sole reason “that you did not have approval from your supervisor to take professional visitation.”  (Exhibit D-9)

            On this record, therefore, the equities weigh heavily in Ms. Henry’s favor.  However, there are countervailing equities which mitigate Ms. Henry’s entitlement to an award.  It appears that, while she had not yet been formally offered the position with Northwest ESD at the time she applied for professional leave with Multnomah ESD, Ms. Henry had a strong expectation that the position with Northwest ESD soon would be offered to her.  In fact it was offered and Ms. Henry submitted her resignation to MESD on December 5th, three days before filing this grievance.   Attending the Closing the Gap conference would necessarily enhance her likelihood of being hired by Northwest ESD in light of her specialty and recent commendation of her work with multi-media computer teaching tools.  (Exhibit A-2). 

Accordingly, Ms. Henry must have known that the second part of her agreement with Ms. Whitten respecting her performance evaluation, the “goal/performance standard” to “present information [from Closing the Gap] to the motor team,” and the “evidence of completion” of this goal, to “present information to motor team during monthly meeting,” (Exhibit A-5) would most likely not happen.  That is, the District would not benefit from her attendance on professional leave time, contrary to the reason for such leave set forth in the applicable District Policy Statement[5]

and reinforced by the Superintendent’s recent policy meeting with Ms. Jorgensen.  But for the timing of Ms. Whitten’s oral approval and subsequent revocation of Ms. Henry’s use of professional visitation, it would have been a proper exercise of Ms. Whitten’s supervisorial discretion to deny professional visitation leave because the District  would not receive the benefit of such a salary expenditure.  This equity in the District’s favor is enhanced by the fact that Ms. Whitten provided in her redaction of the time record that Ms. Henry would receive five additional days of paid contract time at the end of the contract year in June 1998.  Ms. Henry’s resignation was  made with the knowledge that if she completed the contract year she would be paid for more than the three days she sought to be paid for  through professional visitation in October 1997.

             Findings of Facts

1.      Carol Whitten did in fact approve of Ms. Henry’s use of three of the five days at Closing the Gap as professional visitation leave.

2.      Ms. Henry relied upon such approval and incurred substantial expense in reliance thereon.

3.      If Ms. Henry had known  that all of her time would be unpaid, she would not have attended the conference and would not have incurred the expenses of attendance.

4.      The District retroactively withdrew such approval after Ms. Henry had already attended the conference and incurred the attendant expenses.

5.      At the time Ms. Henry applied for professional visitation leave for three of the five days at the conference, she knew that it was very likely she would receive from Northwest ESD an early offer of employment with that district, that she would accept such an offer, and that MESD would not benefit from her attendance at the conference.

Conclusions of Law

1.       The District violated Article 27, subsection A.7 of the Agreement respecting  professional visitation leave.

2.      The District violated Ms. Henry’s rights respecting her work calendar under Article 15.

3.      The District did not violate Ms. Henry’s rights respecting her salary schedule under Article 23, section A.

Remedy and Award

            The AAA rules, Section 32, provide that the arbitrator “may grant any remedy or relief that the arbitrator deems just and equitable…”  In the unusual circumstances of this case, that is where the underlying grievance implicates Ms. Henry’s obligation to benefit the employer by sharing the results of her paid leave with the District, and where Ms. Henry’s resignation obviated her ability to do so, the arbitrator finds that it is equitable for Ms. Henry to share additional salary costs of her professional visitation time at the Closing the Gap conference. 

Accordingly, Grievant

 is awarded two days’ pay, with interest to be calculated at the current legal rate from the date of the paycheck covering the period October 20-24, 1997.

The parties shall share equally the arbitrator’s fees and expenses.

Dated this 12th day of January, 1999

 

By

:

 

David E. Pesonen

Arbitrator

 



[1] The Agreement provides that the arbitrator be selected from the panel of arbitrators of the Oregon State Conciliation Service (i.e.,  Oregon Employment Relations Board) and also be a member of the American Arbitration Association Labor Panel.  At the commencement of the hearing, the parties stipulated that the Rules of the AAA apply to this arbitration.  Accordingly, the AAA National Rules for the Resolution of Employment Disputes will be applied except as overridden by specific provisions of the Agreement.  Exhibit J-1 [1996-1999 Agreement Between Multnomah Education Service District and MESD Education Association, Art. 13, Para. D.4.]

[2]Exhibit J-1, Art. 27 [“Other Paid Leaves”], Para. A.7:  “A member is granted, upon approval of the immediate supervisor, three (3) days’ leave for the purpose of , … attending educational conferences during the school year. “

[3] Grievant was entitled to such an evaluation as part of her employment, under the contract between The District and the Association.  Exhibit J-1, Art. 17 [“Evaluation”].  The purposes of such an evaluation, as stated in the contract, include “acknowledgement of a member’s unique performance on the job.”

[4] Such a curious disposition of Grievant’s MESD Leave Form for her time at the conference is conceded in the District’s  post-hearing brief:  District Post-Hearing Brief, proposed finding of fact No. 10.

[5]  See Exhibit A-13, policy re “Staff Development,” which provides that “The purpose of program/professional development is to provide a mutual benefit to both the staff member and the district.”

 

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