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Title: Knox County Career Center Board of Education and Knox County Career Center Teachers Association
Date: March 11, 2002
Arbitrator: 
N. Eugene Brundige
Citation: 2002 NAC 139

OPINION AND AWARD

In the matter of Voluntary Arbitration

Between 

Knox County Career Center Teachers Association

And

Knox County Career Center Board of Education

Regarding

American Arbitration Association Case Number 53 390 00473 01
[Robert Stumpf II]

 

APPEARANCES:
FOR THE UNION:  
Chauncey Mason,  Advocate
Robert M. Stumpf, Grievant 
Darrell E. Banks, Witness  
FOR THE EMPLOYER:
Donald C. Scriven, Advocate
Debbie Cisler,  Witness
Rick Hornick, Witness
Ray Richardson, Witness

An arbitration hearing was conducted December 20, 2001 at the Mt. Vernon Public Library, Mt. Vernon, Ohio.  The hearing was conducted pursuant to the rules and procedures of the American Arbitration Association.  The instant case involved the termination of the grievant, Robert Stumpf II from his position as Language Arts Teacher at the Knox County Career Center.

The Collective Bargaining Agreement was offered as the only written joint stipulation.  While not specifically stated, the issue to be decided by this arbitrator is:  Was the termination of the grievant for just cause?  If not, what shall the remedy be?”

The parties agreed that the issue is properly before the arbitrator for determination.

Each party was given opportunity to present evidence, examine and cross-examine witnesses and offer arguments verbally and in writing.  Each party did so competently and professionally.   All submissions were reviewed and considered by the arbitrator in reaching the decision recorded herein.

Relevant  provisions of the Collective Bargaining Agreement are:

ARTICLE VI. FAIR DISMISSAL

B. Termination of Contract

1 . Notwithstanding Sections 3319.16 and 3319.161 of the Revised Code, the procedures herein shall be the sole and exclusive procedures for termination of either limited or continuing contracts of: members of the bargaining unit.

2. Termination of a member's contract shall be only for "just cause". The proof sufficient to support "just cause" shall be less than the quantum (i.e., quantity or amount) of proof required to support those statutory grounds as set forth in Section 3319.16 of the Revised Code and shall be supported by a preponderance of reliable and probative evidence.

3. "Just cause" shall be defined as incompetency, inefficiency, dishonesty, drunkenness, immoral conduct, insubordination, discourteous treatment of the public, neglect of duty, willful and persistent violations of lawful Board policies and administrative rules and regulations, failure of good behavior or any other act of misfeasance, malfeasance or nonfeasance of employment.

4. Reasons for termination of a member's employment contract shall be given in writing to the member as to why it will be recommended by the Superintendent to the Board that the member's contract be terminated.

5. A member who has been so advised shall be granted, upon request, a conference with the Superintendent. Such conference shall be held within ten (10) days of request. At this time the bargaining unit member shall be given the opportunity to show cause why his/her contract should not be terminated. A decision in writing shall be rendered by the Superintendent to the member within five (5) school days.

6. A bargaining unit member shall be granted a review before the Board, which shall be in executive session. Such request shall be in writing and filed with the Treasurer of the Board. At such review, the member shall be given the opportunity to show cause why his/her contract should not be terminated.

7. The member shall be entitled to the presence of and/or representation by a representative of the Association at any meeting, review or hearing held pursuant to this Article.

8. Any member whose contract is terminated may file a grievance at Level Four of the Grievance Procedure, Article IV. Said grievance shall be filed within thirty (30) calendar days of the Board's action to terminate such member's contract or shall be deemed to have been waived and no longer to exist.

9. The Arbitrator is limited to the determination of whether the appropriate party has sustained the burden of proof as established herein. The Arbitrator shall have no authority to order the Board to re‑employ such member or to award back pay by reason of procedural errors except when the arbitrator determines that such errors worked to the substantial prejudice of the Grievant.

ARTICLE IV. GRIEVANCE PROCEDURE

B.                PROCEDURE

4, Level Four‑‑Formal

a. If the grievant is not satisfied with the disposition at Level Three, he/she may request that the issue be submitted to arbitration within five (5) days after receipt of the written notice of the action taken by the Superintendent.

b. The Arbitrator shall be appointed by the Superintendent and the grievant, or their designated representatives, from a list submitted by the American Arbitration Association. If the parties cannot agree on the SE‑1ection of an Arbitrator, a second list of seven names shall be requested from the American Arbitration Association, and the parties shall alternately strike a name from said list until a single name remains, who shall be the Arbitrator.

c. The Arbitrator shall have no power to alter, add to, or subtract from the terms of the Agreement, nor to make any award which is inconsistent with the terms of the Agreement or contrary to law.

d.  The Arbitrator shall make a report and recommendations to the grievant, the Superintendent, and the President of the Association. If the grievance is as defined as in Subsection A 1 (a), the decision shall be binding upon the parties. If the grievance is as defined as in Subsection A 1 (b), the decision shall be advisory only and not binding upon the parties. The said report shall be within thirty (30) days of request for arbitration. Cost of the Arbitrator's services shall be paid by the unsuccessful party. If the unsuccessful party is not reasonably apparent from the award, the Arbitrator shall be petitioned to determine to whom such costs shall be assessed in accordance with the intent of this provision.

Management Position:

            The Knox County Career Center, like most schools, begins the school year with several days of teacher orientation meetings.  On August 22, the third day of teacher orientation, the grievant failed to attend a mandatory meeting of all teacher.

            In the view of the Board of Education this was the final straw.  This failure to follow the policies of the Board, based upon his prior record led to his termination on September 20, 2001.

            In order to explain their “last straw” theory, management witnesses reviewed Mr. Stumpf’s record as a teacher.

            The immediate supervisor, Debbie Cisler, testified that she had previously had conversation with the grievant about missing staff meetings.  She related an incident wherein Mr. Stumpf stated he had to attend a meeting at the Middle School on the day of a staff meeting.  She stated he then arrived at the meeting about 3:05.

            She also noted Mr. Stumpf had noted in his goals, the intention to reduce the times he would leave school early.

            Other incidents of “poor judgment” included one in January 1992 when he used the word “fuck” in the presence of a student.

            In 1994 the grievant was written up for showing part of a pornographic film to his class.

            He received a conference and a write up in 1995 when he was overheard referring to students with terms like: “idiot” and “stupid son of a bitch.”  He apologized for these remarks.

            He was written up again in September 1999 after a parent complained about his use of words like: “damn,” “shit,” “hell,” and “god damn.”

            The Director noted that this was the fourth document in his file which involved “poor judgment” and failure to conduct himself in a professional manner.

            In March 2001 he told a student a joke using the word “dumbass.”

            In 1999 the Superintendent put the grievant on notice that “any more inappropriate behavior” put him at risk of termination..

            In one exchange at hearing the advocate for the Board noted that their case was based upon a “common thread of poor judgment and lack of cooperation.”

            Neither party asserted any procedural defects in this case and thus management believes the termination was reasonable and for just cause.

Union Position:

            While acknowledging the different basis for termination, as recorded in the Collective Bargaining Agreement between the parties, the union contends that just cause simply does not exist to support this termination.

            The union offered an aggressive defense of Mr. Stumpf.

            They note that Mr. Stumpf is an excellent teacher.  To support this view, performance evaluations of Mr. Stumpt were introduced and reviewed by the arbitrator. (They will be discussed later in this opinion.)

            The union argues that the incident of missing the staff meeting was a misunderstanding and does not support termination of employment.  They assert that even though Mr. Stumpf may have left the building, he was still working in that he was gathering newspapers for use in one of his classes.

            The union attempts to convince this arbitrator that the grievant believed the general staff meeting had been cancelled.

            The union notes that there appeared to be dissention between Ms. Cisler and the grievant after she was appointed as his supervisor.

            The union argues that the grievant was never insubordinate in that Ms. Cisler “did not make an effort to direct the Grievant into the meeting.”[1]

            In responding to the past infractions of the grievant, his representative argues that they were “stale” and unrelated to the current offense.  The union concludes the arbitrator should pay no attention to them.

            The union argues that the grievant did not have warning that missing a staff meeting would result in his discharge.

            Finally the union proffers the view that Mr. Stumpf’s termination was due to the fact that he is an atheist and his termination was for improper reasons based upon his “religious” beliefs.

DISCUSSION:

            This is a difficult case.  The Arbitrator has reviewed the performance evaluations of the grievant for the last ten years.  They show a teacher who is hard working and talented in meeting the needs of students in various program areas.  His evaluations note enthusiasm, creativity, excellent classroom control and success in meeting the goals of a language arts teacher in a career center. 

            Some problems are noted related to a messy classroom, a failure to provide good bulleting boards, a sense of professional isolationism, and frequent absences.  But, for the most part they reflect a good teacher.

            Just as the performance evaluations provide an important and appropriate picture of one aspect of the work record of Robert Stumpf, the other records in his personnel file must also be reviewed.  I reject the argument of the union that these incidents are “stale” and not related to the current offence and must be disregarded.

            In a similar situation Arbitrator Stanley Block offered this explanation:

            “In an arbitration case, the Union always refers to the length of service of the Grievant as a factor deserving mercy.  But if the arbitrator is not free to consider the entire record of an employee, he is unable to distinguish between a 10-year employee with a nearly perfect record and another 10-year employee with a very black record of violations and disciplines, holding onto his job only because the City and Arbitrator are barred from considering the constant repetitions of violations.”[2]

            Sometimes parties negotiate a provision into collective bargaining agreements limiting the duration of such records.  Absent such a provision the arbitrator should review all that is available.  It then falls to the arbitrator to assign appropriate value and weight to each of them.

            The exhibits offered by management show a pattern of poor professional judgment.  Some of them, like the use of the “F” word and the disparaging remarks made about students could have likely resulted in significant discipline at that time but the administration chose to warn the grievant instead. 

            It is the job of any union to offer a vigorous defense on behalf of any member charged with wrongdoing.  In this case such a defense was offered. 

            One such argument puts forth the premise that the grievant was not warned that failure to attend the staff meeting would lead to his termination.  This arbitrator rejects this view.  Management submitted into evidence documents that state each teacher is obligated to attend three days of mandatory meetings.  Management is under no obligation to tell a professional employee the negative outcomes associated with the failure to carry out each assignment.  Teachers are professional employees.  The evidence shows this teacher is a highly intelligent employee.  No one can really believe that each assignment must be followed by a warning: “If you fail to complete this assignment you will be disciplined.”  The appropriateness of the level of discipline will be discussed later in this opinion, but the underlying principle that someone needed to say to the grievant: “If you fail to attend the mandatory  staff meeting you will be disciplined,” is rejected by this arbitrator.

            The union notes that little emphasis was given to the sign-in, sign-out requirements of the employer and thus a failure to sign out should not be a cause for discipline.  I agree.  The error made by the grievant is not that he failed to sign out when he left the building. 

            The union also argues that the grievant never made the same mistake twice.  The argument would seem to be that as long as the grievant committed a new infraction each time, then management would be powerless to do anything except issue new warnings.

            Prior infractions must be connected in some way.  There must be a common thread that connects them.  Management argues the common thread is “professional judgment.”  This arbitrator agrees.  Are the prior actions connected to the current one because they all incorporate a lapse of “professional judgment”?  I believe they are.

            I am sure, upon reflection, Mr. Stumpf would not have made disparaging comments about students if he had thought about the impact or consequences that might result.  Likewise, I am sure he would not have spoken the questionable words if he had thought about them before uttering them.  I am very sure that he would not have missed the staff meeting if he had given prior thought to the potential consequences.

            The most creative argument advanced relates to the claim that Mr. Stumpf was fired because he is an atheist.  Everyone in the room was aware of the grievant’s views on this subject and had been for some time.  The evidence simply does not show any relationship between Mr. Stumpf’s  beliefs and the reasons for his termination.  The veiled reference to Ms. Cisler’s religious beliefs did nothing to convince this arbitrator that this was a factor in this matter.  Ms. Cisler was clearly not the decision maker.  The evidence shows that the person who decided to terminate Mr. Stumpf was Superintendent Richardson and he clearly did not want to do so.  Union exhibit 1, the memo memorializing a conversation between Mr. Stumpf and  Superintendent Richardson, states:   “I do not want to terminate you and please don’t make me regret the decision that I am making to give you another chance….”  

            The union also argues that management failed to prove its case.  Let us review the record.  The grievant was scheduled to work on the day in question.  He, along with all other teachers, had been given certain responsibilities on that day.  He understood that because he asked for special consideration in order to spend the afternoon with his son and new grandchild.  Even though he had no right to take that particular time off, the superintendent granted his request. 

            Whether or not the grievant believed the meeting was cancelled, we will never know with certainty.  He was in the proximity of a conversation where it was discussed that the meeting would go on but the attorney scheduled to speak would not be in attendance.  Lets give the grievant the benefit of the doubt that he did not hear that conversation.

            Next there was the public address reminder of the meeting.  It is harder to believe that he did not hear this announcement as well as the first conversation.  Even if it is possible that he “tuned out” that announcement, we still have the fact that he saw all of his colleagues in the room where the meeting was scheduled to take place.  He did not stop to attend, or even to seek permission to go about his prior planned activity, he just walked on by. 

            There is no doubt in this arbitrators mind that the grievant walked out without attending the required meeting and made no attempt to get permission to do so.

            We turn then to the crux of this case.  The major remaining argument of the union relate to  “does the punishment fit the crime?”

            This is the difficult part of this case.  Standing alone, the failure to attend the staff meeting, while serious, would warrant discipline but would likely not warrant termination. 

This arbitrator disagrees when the union says Mr. Stumpf was never insubordinate.  Failure to follow written direction is a form of insubordination.

            All parties agree that teacher termination is governed by the terms of the Collective Bargaining Agreement and so it is irrelevant as to what the decision might be under the statutory requirements of the Ohio Revised Code.

            We must, instead, examine the unique language contained in Article VI of the Contract.

            The task of the arbitrator is fully articulated in number 9 on page 8 of the contract, where it states: “The Arbitrator is limited to determination of whether the appropriate party has sustained the burden of proof as established herein.”

            The “burden of proof” is defined in number 2 on the same page of the contract:  “Termination of a member’s contract shall be only for “just cause.”  The proof sufficient to support “just cause” shall be less than the quantum (i.e. quantity or amount) of proof required to support those statutory grounds as set forth in Section 3319.16 of the Revised Code and shall be supported by a preponderance of reliable and probative evidence. (emphasis added).

            The Collective Bargaining Agreement provides its own definition of “just cause.”  It states: “”just cause’ shall be defined as incompetency, inefficiency, dishonesty, drunkenness, immoral conduct, insubordination, discourteous treatment of the public, neglect of duty, willful and persistent violations of lawful Board policies and administrative rules and regulations, failure of good behavior or any other act of misfeasance, malfeasance or nonfeasance of employment.”     

The best definition of Just Cause outside of that included in the Collective Bargaining Agreement, was stated by Arbitrator Carroll Daugherty, in the famous Enterprise Wire Case and restated in various publications since including  Just Cause, the Seven Tests.[3]

            In paraphrased form, the seven tests are:

Test No. 1:   Was the employee forewarned? 

            We have previously discussed this test. 

Test No. 2:  Was the rule(s) reasonable and fair?

            No one will argue whether management should be able to determine which meetings they will require attendance and which they will not. 

Test No. 3:  Was there an investigation? 

            Necessary requirements were met.

Test No. 4:  Was the investigation fair? 

            There is no evidence it was otherwise.

Test No. 5:  Was there proof that the employee was guilty as charged?

            I have already addressed the point that, to the satisfaction of this arbitrator, the administration proved the employee failed to attend the required meeting.

Test No. 6:  Have the rules been applied even handedly and without discrimination?

            No evident was presented to the contrary.

Test No. 7:  Was the penalty appropriate? 

            This is the point under discussion.

            The only real question in the mind of this arbitrator is whether the act of failure to attend the staff meeting is adequate, in and of itself,  to rise to the level

Adequate to meet the definition of just cause contained in the contract.

            Many arbitrators have been confronted with similar circumstances and decisions and are willing to uphold termination due to a single action that creates the “last straw” for management.

            The distinguished arbitrator, Fred Kindig, upheld the termination of a Pike County Deputy Sheriff for failing to attend a staff meeting and failure to “mark out” to attend an EMS meeting after that Deputy Sheriff had entered into a last chance agreement for previous infractions.[4]

            While the grievant in the instant case had not entered into a last chance agreement, the conversation between himself and the Superintendent, which Mr. Stumpf acknowledged with his signature, clearly shows he understood that his future employment was in serious jeopardy.  This should have been adequate to remind Mr. Stumpf that he must be very careful to follow all the rules and policies of the Administration.

            It is the finding of the undersigned that while the infraction of missing the staff meeting would not, in and of itself, support termination from employment. But, the fact that it was a part of a series of failures of good behavior.  And based upon the unique language of the Collective Bargaining Agreement in effect, the Board of Education has sustained its burden of proof in establishing just cause by a preponderance of reliable and probative evidence.

AWARD:

            Based upon consideration of all evidence presented, testimony offered, the arguments of the advocates, a review of the governing contract language and the post hearing briefs, the grievance is denied.

Issued at London, Ohio this 11th day of March, 2002

_______________________________
N. Eugene Brundige, Arbitrator


[1] PROFESSIONAL GUILD OF OHIO’S POST HEARING BRIEF, page 9

[2] City of Quincy, Ill., 81 LA, 352, 359 (1982)

[3] Just Cause the Seven Tests, Koven, Adolph M., Smith, Susan L., Second Edition Revised by Farwell, Donald, F., The Bureau of National Affairs, Inc. Washington, D.C. 1992[4] Pike County Sheriff, Waverly, Ohio and the Fraternal Order of Police, Ohio Labor Council, Inc., 116 LA 843, November 21, 2001

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