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Title: Arlington Education Association and Arlington School District No. 3
Date: Febuary 11, 2000
Arbitrator: David Pesonen
Citation: 2000 NAC 136


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

OREGON PUBLIC EMPLOYMENT ARBITRATION

  Arlington Education Association and Grievant Ross Kerr,

          Petitioners,

     And

 Arlington School District   No. 3,

          Respondent

)

)

)

)

)

 

 

ARBITRATOR'S DECISION

 

I.              PROCEDURAL BACKGROUND

The incidents underlying this arbitration occurred in November and December 1998.  The parties commenced arbitration proceedings in May 1999, after exhausting the internal appeals specified in the collective bargaining agreement.  In August 1999, counsel for Respondent advised me that upon further evaluation she was of the view that this particular grievance was not subject to arbitration.  In September 1999 Respondent formally moved to dismiss this arbitration, contending that the parties’ collective bargaining agreement and certain policies adopted by Respondent’s governing board precluded arbitration of this grievance.  Both parties briefed the issue. On October 8, 1999 I issued a written decision denying Respondent’s motion to dismiss. 

The matter then proceeded to formal arbitration in Arlington on December 14, 1999.  Petitioners were represented by Attorney Ralph E. Wiser, Esq. and Respondent was represented by Attorney Lisa M. Freiley of the Oregon School Boards Association.  Testimony under oath was received from Petitioner Ross Kerr, Arlington Education Association representative Norm Cox, and Arlington School District Superintendent Dustin Hoehne. Documentary exhibits were introduced by both sides. The hearing was closed at 1:15 p.m. subject to being submitted on simultaneous briefs to be postmarked not later than January 28, 2000.  The parties’ briefs were timely received on January 31st and the matter stands submitted for decision.

II.   ISSUES AND CONTENTIONS OF THE PARTIES

Petitioners contend that a December 3, 1998 letter of reprimand from the Arlington School District Superintendent, Dustin Hoehne, to the Grievant violated Mr. Kerr’s rights under the collective bargaining agreement between the District and the Arlington Education Association, which is the certified employees’ representative organization, and also violated a District Board policy.  The subject letter asserted in part as follows:

This letter constitutes an official reprimand related to performance of your duties as a teacher in the Arlington School District.  The purpose of this letter is to outline my concerns and specify certain types of conduct which, for the protection of all parties involved, must not continue.  This letter will be placed in your personnel file.

During class time Monday, November 16, 1998, you put your hand on a student, grabbing him by the upper arm in the lockeroom (sic) to move his body to a different place.  The student has a bruise on his upper left arm that he reports he received from you when you grabbed him.  I have seen the bruise first hand.  When I interviewed you Tuesday, November 17, 1998, you admitted to grabbing the student by the upper arm to move his body to a different place in the lockeroom (sic).

 

There are definite limits regarding physical contact with students.  There should be no physical contact unless you protecting (sic) a student from physical harm.  This behavior must not be repeated.  You will not put your hands on students when enforcing classroom directives or administering discipline.  Any deviation from this directive will result in discipline up to and including discharge.

Specifically Petitioners contend, that this reprimand should be expunged from Grievant Kerr’s personnel file for two reasons:  (1) it was made in violation of the “Complaint Procedure” in the contract (Art. X.F) because the precipitating complaint from the affected student’s parents was not reduced to writing[1] and/or (2) it was in violation of the “Just Cause” policy of the District, which is incorporated in the contract by reference (Art. X.A) and set forth in a District policy directive, styled “Discipline and Dismissal of Licensed Staff.”[2] 

The Respondent School District contends that even if this reprimand is precluded under the contract’s complaint procedure, the District may discipline a certified teacher on its own initiative for serious infractions, that the incident underlying the reprimand was such a serious matter, and that the discipline imposed on Grievant Kerr was consistent with the District's’ “Just Cause” policy. 

III.        EVIDENCE IN THE RECORD

Petitioner/Grievant Ross Kerr, a certified elementary school teacher, has been employed by the Arlington School District since 1997.  He teaches the 5th grade class, which in November 1998 had 13 students.  On the morning of November 16, 1998, he received a phone call at home from Superintendent Dustin Hoehne, requesting that he also teach the 6th grade class that day.  Mr. Kerr agreed to do so.  The 6th grade class also consisted of about 13 students.

Mr. Kerr combined the classes in the room usually occupied by the 6th grade class and began the teaching day for both grades.  About mid-morning there was a fire drill, during which all students were to file out of the building.  In that process, several of the boys from both classes engaged in some sort of altercation involving pushing and shoving and were admonished by Mr. Kerr to settle down, which they did.  This group included Evan Haney from the 5th grade and Sam Staples from the 6th grade.

The remainder of the teaching day proceeded uneventfully until the last period, which was physical education or “gym” class.  Ordinarily the 5th and 6th grade boys have this “gym” class on alternate days, so that they are not together congregated in the locker room.  The routine for gym class involves changing into gym clothes that are kept in each boy’s separate locker, followed by physical activity and games for the remainder of the hour.

The layout of the locker room is typical of such places.  Rows of lockers extend from a common room.  There are two facing walls of lockers with a low bench between them in each row.  The space from the edge of the bench to the face of a closed locker in each row is a narrow walkway that is effectively blocked by an open locker door.  Evan Haney’s locker was at the far end of the row of lockers, closest to the wall.  Next to it was Sam Staple’s locker.  If the door of Sam Staple’s locker were open, passage to Evan Haney’s locker was blocked on that side of the bench, although it would appear that access to Evan Haney’s locker could be made by stepping over the bench to the side of the facing row of lockers, going around the segment blocked by Sam Staples’ locker door, and then stepping back over to that side to Evan Haney’s locker.[3] 

It is relevant to the events that followed that all of the witnesses who testified at the hearing in this case were of the view that Evan Haney had a “short temper.”  He had punched another student on some earlier date; he was described by Mr. Kerr as having a “history of discipline problems”;  Norm Cox,

another teacher and president of the Education Association, testified euphemistically that Evan was a “challenging student”; and Superintendent Hoehne concurred that Evan “has a history of being a behavioral problem.”

Mr. Kerr testified that as the boys were changing into their gym clothes he observed some sort of altercation between Evan Haney and Sam Staples at Sam Staples locker, the door of which was open.  Both boys were in an aggressive mode, with some loud, confrontational language, centered on the fact that Evan Haney’s access to his own locker was obstructed by Sam Staples and his open locker door. 

Mr. Kerr testified that he was concerned that the dispute between the two boys was escalating into pushing and shoving and possibly blows, with the risk that one of the boys might be injured by contact with the sharp edge of a steel locker door or a fall over the bench to the concrete floor.  He testified that Evan ignored his command to break off the confrontation and wait for Sam to finish changing clothes before going to his own locker.  He further testified that at that point he felt it necessary to use some physical force to prevent further escalation of the dispute.  He grasped Evan’s arm and pulled him away from the immediate vicinity of the dispute. 

After Sam Staples had changed into his gym clothes, Evan did so and the rest of the hour progressed with games as scheduled.  There were no other disputes between Evan and Sam that day and no complaint by Evan respecting Mr. Kerr’s treatment of him at the locker incident with Sam.  Mr. Kerr testified that he went home that afternoon satisfied that he had handled satisfactorily the task of teaching and supervising both classes.

The next morning, however, Superintendent Hoehne called Mr. Kerr to this office.  During a meeting of approximately 10 minutes, Mr. Hoehne reported that he had received a complaint from Terry Haney, Evan Haney’s parent or guardian, complaining that Evan had been physically assaulted in some way by Mr. Kerr the previous day.  It was not clear on this record whether in this conversation the Superintendent reported that Evan had alleged that he had been “slammed against a locker” by Mr. Kerr; but at some point in the Superintendent’s investigation of the incident, that allegation was made. Mr. Kerr admitted that he had used physical force by grasping Evan’s arm in the locker room to separate him from Sam Staples and that he had done so out of concern for both boys’ safety. 

In this initial meeting with Mr. Kerr, Superintendent Hoehne did not discuss the manner in which Mr. Haney’s complaint had come to his attention.  It emerged during testimony in the arbitration hearing, however, that Mr. And Mrs. Haney, along with Evan, had come to Superintendent Hoehne’s office that morning to complain about physical abuse of Evan, that Evan displayed a bruise on his arm, and that the Haney’s were angry. 

In their initial meeting on the morning of the 17th the Superintendent did not express an opinion regarding the seriousness of those events or of the prospect for discipline of Mr. Kerr as a result of those events.

Under the complaint procedure of the contract the employee may choose to discuss the complaint informally with the complainant . . .” (Art. X.F.2.)  In the meeting on the morning of the 17th, Mr. Kerr advised Superintendent Hoehne that he wished to pursue this avenue.  On November 18th, Mr. Kerr contacted Terry Haney by phone; they discussed the locker room incident for perhaps ten minutes without a satisfactory resolution.  Mr. Haney then phoned Mr. Hoehne, told him of his phone conversation with Mr. Kerr, and said that the matter had not been resolved to his satisfaction. The Superintendent responded by telling Mr. Haney that he had a right to put his complaint in writing. 

        The next day, on November 19th, Superintendent Hoehne sent a letter to Mr. Kerr which recited that its purpose was “formal notification of a complaint against certified personnel as per the negotiated certified contract for the Arlington School District.”  The factual basis for the complaint recited in this letter was that “Mr. Haney informed me that [in the locker room on Monday November 16, 1998] you grabbed Evan Haney, using excessive force, by the upper arm and moved his body to in front of the lockers.”  This letter went on to reiterate that in the initial meeting on the 17th, Mr. Hoehne had informed Mr. Kerr of Mr. Haney’s “right to put his complaint in writing and present it to me.” This stress on a written “complaint” in the Superintendent’s November 19th letter to Grievant and his advice to Terry Haney in Mr. Haney November 18th phone call were intended to echo the complaint procedure in the contract.  (See fn. 1)

Superintendent Hoehne’s November 19th letter to Grievant concluded by reiterating the content of a second conversation between them on that date in which the Superintendent “suggested that [Grievant] seek advice from your union representative” and advised him that “the range of consequences, based on the facts and the complaint could range from nothing, or verbal reprimand to discharge from your position.”

The Superintendent then initiated a further investigation of the November 16th incident in the locker room.  He interviewed two other students who had been present in the locker room, who, he testified,  “reported pretty much the same story” as had Mr. Kerr but did not confirm Evan’s claim that he had been “slammed against a locker.” 

 Superintendent Hoehne testified that on balance he concluded that the incident “could have been handled differently.”   Superintendent Hoehne did not take any notes of any of his investigatory meetings—the November 17th meeting with the Haney’s or with the other students at a later date--nor did he go with Mr. Kerr to the locker room to view the physical layout where the incident occurred.

On November 30th Superintendent Hoehne wrote again to Mr. Kerr,  advising him that on November 24th Mrs. Haney had called to say that “her (sic) and Mr. Haney are not going to put their complaint in writing” and that “at this point the complaint has been closed on behalf of the parents.”  However, this letter went on to warn that the Superintendent independently was planning “to move forward considering the severity of the conduct.”

Three days later, on December 3rd, the Superintendent sent the formal letter of official reprimand to Grievant which is the specific action contested in this arbitration.  

This letter of reprimand is the first occasion that Superintendent Hoehne contended that the level of physical restraint Grievant had used on Evan Haney was sufficient to cause injury.  However, during the arbitration hearing, Mr. Hoehne denied that he had intended to imply that the bruise to which he referred in the reprimand was the result of the locker room contact.  He testified that he had drawn no conclusion as to the cause of the bruise.  In context, however, it is difficult not to conclude that he intended to imply that he believed that   this physical injury was caused by Mr. Kerr’s use of excessive force.

        The above rather extended recitation of the evidence seems necessary to this arbitrator because the resolution of this arbitration turns on  conflicting perceptions of a brief incident, some based on second or third hand accounts, recounted contemporaneously by the participants in stressful environments and put in evidence in this arbitration more than a year afterwards.  Evan Haney’s parents were angry over what they were told by their child.  Mr. Kerr was a probationary teacher and faced the first instance of discipline in his teaching career.   Mr. Hoehne had only recently been appointed superintendent, this was his first appointment to such a position, and this was the first occasion in which he felt called upon to formally discipline a teacher.

        Furthermore, the incident implicated conflicting professional obligations of the participants.  Mr. Kerr had a professional and statutory duty to prevent physical harm to the children in his charge.  The District’s formal position description for teachers includes as a “performance responsibility” to take “all reasonable precautions to provide for health and safety of the students…”  The Board’s corporal punishment policy, which prohibits physical force for purposes of discipline, affirmatively provides that—

        A staff member is authorized to employ physical force when, in his/her professional judgment, the physical force is necessary to prevent a student from harming self, others or doing harm to district property.

        This policy was adopted by the Board pursuant to ORS 339.250, which is even broader and permits—  reasonable physical force upon a student when and to the extent the individual reasonably believes it necessary to maintain order in the school or classroom or at a school activity or event, whether or not it is held on school property  

        Mr. Hoehne, on the other hand,  had a professional and statutory obligation to assure that the children in schools under his responsibility were protected from improper use of force by the District’s staff. This duty is a strict one, as the District properly points out, with special reference to dictum from the Oregon Supreme Court’s decision in Fazzolari v. Portland School District No. 1J, 303 Or 1, 20, 734 P2d 1326 (1987).  There the Court stressed that a school district has a “special duty arising from the relationship between educators and children entrusted to their care apart from any general responsibility not unreasonably to expose people to foreseeable risk of harm.”  

        The Respondent argues that, regardless of whether the Haneys’ complaint was reduced to writing, as required for discipline to be imposed under the contract provisions regarding complaints, the District has an independent duty to impose discipline for serious offenses committed by teachers.  One category of such serious offenses is the use of corporal punishment, which is strictly prohibited.

        The evidence, however, does not establish that Mr. Kerr inflicted corporal punishment on Evan Haney.  Superintendent Hoehne testified that he did not conclude that the bruise displayed on Evan’s arm was caused by Mr. Kerr’s grabbing Evan in the locker room.  And Evan’s claim of having been slammed against a locker was not supported by the other two students who had been present in the locker room whom Mr. Hoehne interviewed in his follow-up investigation.  His first letter to Mr. Kerr characterized his view of the event as involving a complaint   of “excessive force” in the circumstances, but not of improper and prohibited corporal punishment.  He testified that at the time of his first meeting with Mr. Kerr about the incident, he thought only that the matter “could have been handled differently.”  By December 3rd his perception seems to have ripened into equating any physical touching with corporal punishment   

        The preponderance of the evidence supports Mr. Kerr’s version of events in the locker room and the reasonableness of his conclusion that some physical force was necessary to prevent the risk of injury to either Evan Haney or Sam Staples or both.  The evidence further shows that Superintendent Hoehne treated the matter as subject to the complaint procedures under the contract at all times until discipline of Mr. Kerr under that provision of the contract was precluded by the Haneys’ declining to put their complaint in writing.  Only after being advised of the Haneys’ decision on November 24th did he move to construe the incident as a case of corporal punishment, subject to discipline outside the contract’s “complaint” provisions.

        This conclusion renders any lengthy discussion of the “Just Cause” policy unnecessary.  The weight of the evidence is that Mr. Kerr’s use of physical force was reasonable in the circumstances as he reasonably perceived them.  In other words, there was no “offense” that would bring the Just Cause policy into play. “Proof of guilt” was not established and the discipline violated paragraph 3 of the Just Cause policy. It further appears to this arbitrator that Mr. Hoehne’s investigation of the incident, in which he made no written record of his interviews and did not undertake a view of the scene, was not consistent with the thoroughness and objectivity required either under paragraph 2 of the Just Cause policy or as a general matter involving serious offenses.  If the matter were as serious as the District now contends, a documented record of the investigation was essential to protect the interests of all parties. In sum, there was no just cause for Superintendent Hoehne’s December 3, 1998 letter reprimanding Ross Kerr.

        This conclusion does not imply that the District is limited to the contract’s complaint procedure in the case of a serious offense by a teacher.  There are categories of offenses, specified in statute and Board policy, where the Superintendent must act swiftly and on his or her own initiative to discipline District staff, regardless of whether there exists a complainant or a complaint reduced to writing.  Furthermore, circumstances can readily be envisioned in which the District should proceed to discipline a teacher when there is a complaint but the complainant declines to put it in writing.  The evidence in this arbitration simply does not establish that this is one of those cases.

          IV.   REMEDY

The District shall expunge from Ross Kerr’s personnel file the December 3, 1998 letter of reprimand and any other materials that directly or indirectly suggest discipline of Ross Kerr for the events in the Arlington School District’s school locker room on November 16, 1998.

V.              ARBITRATION FEES AND EXPENSES

The parties are to share equally the arbitrators fees and expenses for this arbitration.[4]  Such fees and expenses will be submitted to counsel for the parties under separate cover.  

  

Dated this 11th day of February, 2000

 

 

 

 

David E. Pesonen, Arbitrator

 


[1] Article X, Working Conditions, Para. F. Complaint Procedure:

      The parties recognize the (sic) complaints may be made against district employees.  A complaint is a negative criticism about the employee.  It is the intent of this procedure to resolve complaints fairly at the lowest [footnote continued on next page]

 

possible level.

1.        Once a complaint regarding an employee’s performance is brought to the building supervisor’s attention, the employee will be notified within five (5) working days.

2.        The employee may choose to discuss the complaint informally with the complainant and with/without the building principal present.  Complaints resolved at this level shall not be considered in employee evaluation.

3.        If the complaint is not resolved, and the administrator intends to make any record of the complaint, the complaint will be reduced to writing and signed by the complainant.  Oral complaints shall not be considered.

4.        4.  The employee is entitled to all pertinent information about the complaint.

5.        Any action taken against the employee shall be reasonable and may be appealed through the grievance procedure.

 

[2] Art. X, Para. A. Just Cause:

      The Just Cause provision shall be in district policy.  The Just Cause policy shall not be changed during the length of this contract without mutual written agreement.

 

      The Just Cause policy, adopted 10/9/91 and readopted 6/10/98, provides:

Just Cause:  Rules and regulations affecting teachers shall be reasonable.  Any adverse action taken against a teacher shall be with just cause.

1.        The employee shall be given a timely written notice of charges against him/her.

2.        The employee shall be warned of the consequences of his/her conduct.

3.        The district shall conduct a thorough and objective investigation before administering discipline.  Proof of guilt will precede an employee’s discipline.

4.        All relevant information forming the basis of disciplinary action will be made available to the employee at the employee’s request.

5.        The disciplinary penalty shall be reasonably related to the seriousness of the offense and past record of the employee.

6.        The rules, orders and penalties will be applied reasonably, equitably and with discrimination.

7.        Rules and regulations affecting teachers shall be reasonable.

[3] This evidence was demonstrated on a chalkboard during the hearing in this case.  There was no view of the scene by the arbitrator.

[4] Usually the collective bargaining agreements under which arbitrators are

      [Footnote continued on next page]

appointed from the list provided by the Oregon Employment Relations Board specify an allocation of the arbitrator’s fees and expenses ranging from “loser pays” to some sort of proportionality to an even division.  The contract in this case is silent on the issue.  Accordingly, the default position, equal division, applies.

 

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