28 day free trial

 

 

  

LawMemo - First in Employment Law

Home MyLawMemo About Us   Arbitration Articles

Search arbitrators | National Arbitration Center | Search awards 

 

Title: Tri – Valley Local Schools and Tri - Valley Education Association
Date: November 20, 2002
Arbitrator: 
N. Eugene Brundige
Citation: 2002 NAC 149

OPINION AND AWARD

In the matter of Voluntary Arbitration
Pursuant to the Rules of the American Arbitration Association (AAA)

Between 

Tri - Valley Education Association

And

Tri – Valley Local Schools

Regarding

[Grievance filed by Mark W. Prince, April 17, 2002]

 

APPEARANCES:
FOR THE DISTRICT: 
Gregory B. Scott, Advocate 
Doug Spade, Superintendent 
Marshall Hightower, Asst. Supt
Max Maley, Treasurer
Jim Pottmeyer, High School Principal
FOR THE UNION:
CeCile A. Steele, Advocate
Mark Prince, Grievant
John Lanning, Local President


            An arbitration hearing was conducted September 10, 2002 at the offices of the Tri – Valley Board of Education, Dresden, Ohio. The issue at hand was a matter of contract interpretation.  The Board of Education was represented by Gregory Scott, attorney.  The grievant, Mark W. Prince, was represented by CeCile Steele, OEA Labor Relations Consultant.

At the hearing the parties submitted the following joint exhibits:

1.      The Collective Bargaining Agreement in effect.

2.      The Grievance Trail.

The Union submitted the following documentary evidence:

1.      Letter addressed to the Board of Education and various members

2.      The Board Agenda from 4/ 10 / 02

3a. Memo to Mr. Hightower 5 / 31 / 02

3b. Memo to Mr. Prince 6 / 6/ 02

3.      Times Recorder Article 7 / 31 / 02  (received over the objection of the Board)

The Board’s Exhibits included:

1.      A memo dated 5 / 2 / 02

2.      The Level 3 Appeal dated 4 / 30 / 02

            Both parties were given full opportunity to examine and cross examine witnesses, pose arguments and present their respective cases. All materials were reviewed and considered by the arbitrator in reaching this decision.  Both sides ably and professionally represented their clients and respective points of view.

In their post hearing brief the Union phrases the issue before the Arbitrator in the following manner:

“Was the contract between the Tri – Valley Education Association and the Tri – Valley Board of Education violated when complaint letters were delivered directly to Board members, and did that action result in the failure to hire Mark Prince as volleyball coach?  If so, what shall the remedy be?”

The remedy requested by the union “is for Mr. Prince to be hired as head volleyball coach for the 2003-2004 season, to be compensated his regular head volleyball coaching wage for the 2002-2003 season, and any other relief deemed appropriate.”

While management did not specifically address the issue to be answered, both parties did stipulate that the matter was properly before the Arbitrator for determination.

RELEVANT COLLECTIVE BARGAINING SECTIONS:

ARTICLE 21 COMPLAINTS AGAINST PERSONNEL

1.      The Administration may commence an investigation as to the authenticity of any information related to a complaint.   No complaint will be placed in any personnel file of a certified member unless:

a.         The administration notifies the bargaining unit member of the complaint.

b.         Upon the bargaining unit member’s request, a conference was held (including the complainant), if he or she is agreeable to participate), the certified staff member, and the principal or immediate supervisor of the certified staff member.

c.         The findings and resolution, if any, of the aforementioned conference have been reduced to writing by the principal or the immediate supervisor and initiated by the certified staff member.  Such initialing shall not be construed as agreeing with the document, but only that the certified staff member received a copy of the document.  Refusal to initial findings and resolution will be noted and the materials filed per (d.) below.

d.         The certified staff member shall be given a copy of the conference memo and be given an opportunity to write a rebuttal to such record for placement in the personnel file.  Such rebuttal must be submitted within ten (10) days from the date the staff member initials in the conference memo.

e.         Anonymous complaints will not be made a part of the permanent file unless investigation of the complaint substantiates and provides evidence that a valid complaint exists.

2.      Complaints will be advanced through the administration with attempts of resolution at the lowest possible level.  No complaint regarding a bargaining unit member will be the subject of Board action unless the procedure outlined above has been followed.  Should the complaint not be resolved at the conclusion of the administrative complaint procedure and the complainant desires Board consideration of the complaint, then the following procedure shall be implemented.

a.         Complainant shall notify the Superintendent in writing of his/her request for Board consideration of the complaint at the next regular Board meeting.

b.         Notice of the Board consideration of the complaint will be given to the bargaining unit member involved personally or by means of a registered/certified mailing at least three (3) days prior to the Board meeting.  Notice will be mailed to the last registered address of the bargaining unit member filed with the Board.

3.      The complaint shall be heard by the Board in executive session.  The bargaining unit member will be allowed to remain in the executive session called for purposes of Board consideration of the complaint, in order to hear the complainant and respond, and will be allowed to have one (1) representative accompany him/her to the meeting.

4.      Resolution by Board action will become a part of the bargaining unit member’s file, and the bargaining unit member shall receive a copy of the action.  The bargaining unit member may attach an opinion or statement to the filed complaint within then (10) days of the bargaining unit member’s receipt of the Board action.

ARTICLE 3 GRIEVANCE PROCEDURE

{Selected sections}

1.      A grievance is a complaint involving the alleged violation, misinterpretation of or misapplication of: 

The written agreement entered into between the Board of Education and the recognized employee organization, setting forth the understanding of the parties upon those matters negotiated and to which are agreed.

LEVEL 4 ARBITRATION

e.      The arbitrator shall not have the authority to add to, subtract from, modify, change or alter any of the provisions of this negotiated Agreement, nor add to, detract from or modify the language therein in arriving at a determination of any issues presented.

BACKGROUND:

            Mark Wesley Prince is an English teacher employed by the Tri – Valley Board of Education.  He has been employed at the High School for eight years. He has been Head Volleyball coach for ten years and a Junior Varsity Coach a year prior to that time.

            On April 10, 2002 the administration of Tri Valley submitted a list of persons to be re-hired as coaches for the 2002 – 2003 school year.

            Mr. Prince was on that list of recommendations from the administration, to continue as head volleyball coach. 

            The Board of Education met at 7:30 p.m.  Just prior to that meeting the District Treasurer found a number of letters in his office from parents, students and former students.  The letters, which were addressed to the Board of Education and to individual board members, contains complaints about Mr. Prince in his coaching role.  The treasurer copied the letters and distributed them to the Board members.

            The Board went into executive session to discuss personnel matters.  Once they had read the letters of complaint, they invited Mr. Prince and an Association Representative into the executive session.  The Board presented Mr. Prince with copies of the letters and invited him to respond.  Mr. Prince, who had not had an opportunity to review and consider the complaints, did not respond to them at that time.

            The Board ordered Mr. Prince’s name removed from the list and took no action on filling the Head Volleyball Coach position at the April 10 meeting.

            Apparently the Board instructed the administration to conduct an investigation into the matter.

            One week later, on April 17, Mr. Prince filed a grievance.  He stated that he did so because the administration had apparently not commenced an investigation and based upon advice that he needed to file the grievance in order to preserve his contractual timeline for filing a grievance.

            The rememdy stated in the grievance was denied by the Interim Superintendent but the High School Principal was instructed to conduct an investigation.

            Mr. Pottmeyer, the principal, did conduct an investigation and attempted to resolve the matter by meeting with complainants and Coach Prince. 

            Following the investigation the Athletic Director, the High School Principal and Mr. Prince entered into an agreement wherein Mr. Prince would address certain communications and coaching issues, and the administration again advanced the name of Mr. Prince as Head Volleyball Coach.

            The Board declined to appoint Mr. Prince to the coaching position.

            Sometime in the summer the Board hired another staff person as Head Volleyball Coach.  That decision is subject to another grievance which is not under consideration in this arbitration.

UNION POSITION:

            To the union the matter is clear.  If the letters of complaint had been given to the administration and an internal investigation had been conducted, Mr. Prince would almost certainly have been given the position of Head Volleyball Coach again.

            That is the way Article 21 envisioned dealing with complaints.  The direct viewing of the letters by the Board “poisoned the well” sufficiently to assure the Board did not vote to give the position to Mr. Prince.

            The union offers two arguments to bolster their position.

1.      If “Mr. Pottmeyer had received the complaint letters on April 10, 2002, the Board would have acted that evening on the routine matter of approving coaching contracts.  The Board would likely never have become aware of any problems if Mr. Pottmeyer had been allowed to handle the complaints in the manner dictated by the contract,”

2.      “Second, the Board did act on the recommendation to hire Mark Prince by tabling the motion to do so.  The contract is clear that no “complaint involving a bargaining unit member will be the subject of Board action” unless the complaint procedure has been followed.”

It is the Union’s position that the only way to remedy this matter is to appoint Mr. Prince coach in the next school year and compensate him for the salary he would have earned during 2002- 2003.

BOARD’S POSITION:

            The Board argues that the Union is asking the arbitrator to limit communications between the Board of Education and the public the Board is elected to represent.  The Board asserts that while the Labor Contract sets up an internal procedure for handling complaints, there is no bar from the Board hearing citizen complaints.

            The Board argues that to attempt to limit the public in that way would violate the First Amendment of the United States Constitution.

            The Board notes that the investigative procedure of Article 21 was followed completely and correctly once Principal Pottmeyer commenced the investigation. Therefore if there is any merit to the grievance filed April 17, it is now moot.

            Finally, the Board reminds the arbitrator not to journey into that forbidden and dangerous field of land mines, known as “exceeding the arbitrator’s authority.”

DISCUSSION AND AWARD:

            Occasionally a case comes along that an arbitrator would like to decide on the basis of the “smell” test.  Those are cases where something just does not smell right.  At first blush this is such a case.

            Arbitrators are not permited to administer this brand of industrial justice and must, instead, attempt to read and apply the words and meaning of the Collective Bargaining Agreement.

            Mr. Prince appears to be an extremely successful coach both in winning matches and in caring about the development of his players.  His efforts and successes have brought positive recognition to himself and to the school.

            The administration appears to have had confidence in him based upon their recommendations to continue him in the coaching position.

            The evidence would indicate that one or more parents became upset with Mr. Prince and decided to wage a campaign against him in his role as coach.  Certainly this is not an uncommon occurrence for anyone who holds the position of coach.

            The union is correct in stating that if the letters of complaint had not reached the members of the Board of Education on the night of April 10, Mr. Prince would likely have been re-appointed as coach as a routine order of business. 

            But they did.  Some parents, who apparently did not even attend the meeting of the Board of Education, delivered letters to them.  All parties agree that those parents were not bound by the contents of the Collective Bargaining Agreement.

            The question then becomes “did the Board of one or more of its agents violate the Agreement by their handling of the letters?”

The union seems to believe that the treasurer should have declined to deliver the letters to the Board which were addressed to them.  Instead he should have delivered them to someone else or to hold them until after the Board acted on coaching contracts.  I fail to reach that conclusion after reading Article 21.  It clearly anticipates complaints received by the administration being investigated before the Board engages in any disciplinary action.

            Certainly no one would argue that a parent or student would be prevented from hand delivering a complaint letter to a Board member.  Or that the parent or student could not have placed a phone call to a Board member.  Likewise, a parent could have spoken during the public participation part of the Board meeting.  In any of these cases the Board could have decided to table action on the Head Volleyball Coach position.

            I doubt seriously that the board would approve of the treasurer making a unilateral decision to withhold or divert their mail from them regarding a matter that was on the pending agenda.

            The public has an absolute right to communicate with their elected representatives and I cannot see how any member of the administration or the treasurer could have interfered with that process.

            Let us examine, then, the actions the Board took.  They received the letters.  The letters stated concerns.  They called Mr. Prince into the executive session, with an association representative and gave him copies of the letters. 

            Mr. Prince, rightfully (in my view), declined to attempt to answer allegations he had only slightly perused.

            The Board decided to postpone consideration of the matter.

            The union would argue that the inaction of the Board to approve Mr. Prince for the volleyball position was a violation of the agreement.

            This arbitrator fails to see how.  There is nothing in the Collective Bargaining Agreement which guarantees that a bargaining unit member must be appointed to a specific supplemental position and certainly no time lines in which they are required to act.  The volleyball season was not immediately pending.  The Board chose to delay action and that was their prerogative.

            The administration did not immediately commence an investigation.  One would think if there was serious concern about the statements which could constitute sexual harassment that an investigation would start immediately.  The conclusion drawn by this arbitrator is that the administration was not very concerned about this matter.

            Mr. Prince filed a grievance.  While the grievance was denied, the interim superintendent did direct the High School Principal to commence the investigation.  He did so and all parties agreed that it was conducted properly (union brief, page 4).

            Two of the complainants showed for a face to face meeting.  After that meeting the High School Principal formulated a plan of action and Mr. Prince agreed to the elements of that plan.

            Following the investigation and the execution of this document, Mr. Prince was again recommended as head coach, by the administration.  The Board failed to act on that recommendation.

            While this arbitrator may not agree with the action (or inaction) of the Board of Education, they certainly were within their rights to make the decision they did.  Nothing in the Collective Bargaining Agreement requires them to do otherwise.

            In a Pike – Delta ­– York case in 2001 Arbitrator Colman Lalka faced a similar situation wherein the Superintendent recommended an employee for the girls Head Basketball Coach position. The Board refused to act on the recommendation and later went on to hire a non teacher to the position.  The Arbitrator held that the Board was within its rights to do so. [1]

            Shortly thereafter the Tri-Valley Board appointed  a new Superintendent and a new Head Volleyball Coach was selected soon thereafter.  That appointment is the subject of another grievance and is not a matter to be considered by this arbitrator.

            Article 21 is a provision that establishes a procedure which attempts to provide fairness for employees who have complaints asserted against them. 

            Section number 1 provides that no complaints will be placed in the personnel file of the employee unless certain conditions are met.  In fact, Counsel for the Board stated that the letters have never been placed in Mr. Prince’s Personnel file (transcript page 13).

            Section 2 states that “No complaint regarding a bargaining unit member will be the subject of Board action unless the procedure outlined above has been followed.”   The “procedures outlined above” were followed. 

            Even if they were not, Article 21 would not apply.  Coaches have no vested right to the positions they have previously held.  The Board of Education makes an annual decision regarding who will occupy those positions.

            In this unfortunate case a few citizens lobbied their elected leaders.  They apparently were successful in their efforts.  The Board chose not to follow the recommendations of their Administrators and did not re-hire Mr. Prince to the position of Head Volleyball Coach.  The record would indicate that this is an unfortunate loss to the district but one that is within the rights of the Board of Education to determine.

            For the reasons herein indicated, and based upon the evidence, testimony and arguments of the parties, I must deny the grievance.

AWARD

The grievance is denied.

Issued this 20th day of November, 2002 at London, Ohio

________________________
N. Eugene Brundige Arbitrator


[1] Pike-Delta-York Local School District vs. Education Assn., 116 LA 432, 9/26/2001, Lalka, Colman R.

Home | MyLawMemo | Custom Alerts | Newest Cases | Key Word Search  
Employment Law Memo | EEOC Info | NLRB Info | Arbitration | Articles | Law Firms | Site Map 

 

Get your 28 day trial now 

 
LawMemo, Inc.
Post Office Box 8173 Portland, OR 97207
Phone: 877 399-8028