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Title: Lewistown School District Number One and Lewistown Education Association
Date:
October 14, 2003
Arbitrator: John Wormuth
Citation: 2004 NAC 124

 

In the Matter of Arbitration 

between

Lewistown School District Number One

and

Lewistown Education Association,
MEA-MFT 

Dan Bartel, Grievant 

John F. Wormuth
Arbitrator

Arbitrator’s Case No. 03-A-112
Montana Board of Personnel Appeals
Case No. 32-2003

October 14, 2003

 

INTRODUCTION

            This Arbitration arises from a grievance filed by Lewistown Education Association, MEA - MFT, hereafter referred to as the Association, on behalf of itself and  Dan Bartel, hereafter  referred to as the Grievant, a tenured teacher, whose classification is covered by the terms of the  Collective Bargaining Agreement (CBA), Article ll Section  A,  Recognition. The subject of this arbitration is the February 24, 2003,  termination of the Grievant’s employment by The Lewistown School  District Number One, hereafter referred to as District. The Grievant is alleged to have violated §20-4-302 Montana Code Annotated. Discipline and punishment of pupils – definition  of corporal punishment – penalty – defense and the policies  and procedures of the Lewistown School District Number One concerning  corporal punishment.  On the morning of January 28, 2003,  the Grievant is alleged to have violated  the District’s   prohibition on the use of  corporal punishment by the improper  removal of a student from his classroom.

            This arbitration was heard on August 12, 2003, commencing at 9:15 a.m. at the offices of The Lewistown School District Number One, Lincoln Building,  Lewistown, Montana, 59457. 

The parties, from a list submitted by the Montana Board of Personnel Appeals, Case No. 32-2003,   unanimously selected John F. Wormuth as the Arbitrator in this arbitration, to render a final and binding award.  The parties agreed that this arbitration was timely and properly before the Arbitrator, and that all procedural requirements had been met. There were no pre-hearing briefs, but closing briefs were submitted and accepted.  No other briefs or submissions were proffered and none were  requested by the Arbitrator.  Prior to testifying, all witnesses were administered an oath or affirmation by the Arbitrator.   There was no transcription of the hearing but the Arbitrator did take detailed notes and supplemented those notes with a digital recording. Prior to the taking of evidence the Arbitrator informed the parties that both the notes and recording of this arbitration are for  the exclusive use of the Arbitrator  and will not be shown to anyone. The record of this arbitration was closed on September 16, 2003, upon receipt of the closing briefs  from both District and the Association.

The parties were given full opportunity to present evidence, examine and cross-examine witnesses, produce exhibits and present argument, and availed themselves of the opportunity to do so. The  District  introduced 10 Exhibits, marked District  3 thru 12, and the  Association introduced 2 Exhibits  marked Association  1 thru 2. There was 1 Joint  Exhibit identified as such and marked JT Ex 1  All of the Exhibits having been  admitted into evidence and are incorporated herein by reference.

Testimony at hearing was offered by two individuals whom at the time of the incident were students at Fergus High School. In order to protect their privacy, they will be referred to as students number one and two. Student number one is the student that was removed from the classroom by the Grievant.  Student number two is the individual who testified to those events of January 28, 2003.

APPEARANCES

ON BEHALF OF LEWISTOWN SCHOOL DISTRICT NUMBER ONE

Debra A. Silk, Esq.,
General Counsel,
Montana School Boards Association
One South Montana Avenue
Helena, Mt. 59601

ON BEHALF OF LEWISTOWN EDUCATION ASSOCIATION, MEA-MFT

AND DAN BARTEL, GRIEVANT

Richard A. Larson, Esq.
Harlen, Chronister, Parish & Larson. P.C.
36 West Sixth Avenue
P. O. Box 1152
Helena, Mt. 59624

ISSUE

            The parties did agree at hearing  that the issue before the Arbitrator is whether or not  the District had “Good Cause“ to terminate the Grievant from employment on February 24, 2003.

The District frames the issue: “Did the District have good cause to terminate Dan Bartel from his employment with the District?”  (District post-hearing brief, Pg3)

The Association   states the issues as follows: “The issue is whether the School District has good cause to terminate Dan Bartel’s employment and, if not, what is the appropriate remedy?” ( Association post-hearing brief, Pg 2)

The Arbitrator frames the issues to be determined  thusly :

            “Did the Lewistown School District Number One  have good cause to terminate the employment of the Grievant on February 24, 2003?  If not, what is the appropriate remedy?”

RELEVANT CONTRACT  LANGUAGE

Lewistown School District Number One and the Lewistown Education Association-MEA MFT -  (Jt Ex1)

Article lll Teacher Rights

(A)   Nothing contained herein shall  be construed to deny or restrict to any teacher rights as he or she may have under Montana School Law.

(D)    No teacher shall be reduced in rank or compensation, discharged, or otherwise deprived of any professional advantage without due process in accordance with MCA §20-4-204, §20-4-206, §20-4-207.

Article V Rights of the Board

(A)               The Association recognizes that the Board has responsibility and authority to manage and direct, on behalf of the public, all the operations and activities of the School District to the full extent authorized by law.

(B)                   The District shall retain all rights, powers, functions and authority to operate the District and manage its affairs as outlined in state law, except where specifically restricted by this agreement.

Article XIV Grievance Procedure

                      (A) DEFINITIONS

1.      A grievance may be defined as a claim of violation, misinterpretation, or inequitable application of established District policies, statutes, or the terms of this negotiated agreement.

2.      An aggrieved person is a person or a group of persons asserting a grievance. The Association may file a grievance only on the terms of the negotiated agreement.

3.      A party in interest is a person or group of persons making the claim and any person who might be required to take action, or against whom action might be taken in order to resolve the claim.

4.  Grievance arbitration shall only be on the terms of the negotiated   agreement and be final and binding upon both parties

                      (B)   PROCEDURE

7. Level Four: Grievance Arbitration

d.      The arbitrator shall consider the grievance and have all necessary authority to render a full and effective decision which shall be final and binding upon the parties. The arbitrator cannot modify the terms of the agreement.

RELEVANT PROVISION OF THE MONTANA CODE ANNOTATED

§20-4-204 Termination of tenure teacher services.

(5) in part   “If the employment of a teacher is covered by a Collective Bargaining Agreement pursuant to Title 39, Chapter 31, a tenured teacher shall appeal a decision to terminate an employment contract to an arbitrator agreed upon by the District and the teacher’s exclusive representative.”…

(8) in part   “The decision of the arbitrator is final and binding”.

(9) in part  “An arbitrator may order a School District to reinstate a teacher who has been terminated without good cause and to provide compensation, with interest, to a teacher for lost wages and fringe benefits from the  date  of termination to the date that the teacher is offered reinstatement to the same or a comparable position”….

§204-4-2  Dismissal of a teacher under contract.

 (1)       The trustees of any School District may dismiss a teacher before the expiration of the teacher’s employment contract for good cause.

 (2)      (a)  The following persons may recommend the dismissal of a   teacher 

  for   cause under subsection (1):

                                                             i.      a  District Superintendent

                                                           ii.      in a District without a Superintendent, a Principal; or

                                                          iii.      in a District without a District Superintendent or a Principal, the County Superintendent or a trustee of the District.

        (b)   A person listed in subsection (2)(a) who recommends dismissal of a teacher shall give notice of the recommendation in writing to each trustee of the District and to the teacher. 

        (c)   The notice must state clearly and explicitly the specific reason or reasons that led to the recommendation for dismissal.

(3)      (a)  Whenever the trustees of any District receive a recommendation for dismissal,  the trustees shall notify the teacher of the right to a hearing before  the trustees, either by certified letter or by personal notification, for which a signed receipt must be returned. The teacher may, in writing, waive the right to a hearing. Unless the teacher waives the right to a hearing, the teacher and the trustees shall agree on a hearing date not less than 10 days or more than 20 days from the notice of intent to recommend dismissal.

            (b)  The trustees shall conduct a hearing on the recommendation and resolve at the conclusion of the hearing to dismiss the teacher or to reject the recommendation for dismissal.

(4)               With the exception of a County Superintendent, a person who recommends dismissal pursuant to sub section (2) may suspend the teacher from active performance of duty, with pay, pending the hearing date, if the teacher’s behavior or acts that led to the recommendation for dismissal are contrary to the welfare of the students or the effective operation of the school district.

(5)                Any teacher who has been dismissed may, in writing,  within 20 days, appeal the dismissal under the guidelines set forth in §20-4-204. The teacher may appeal a decision to terminate an employment contract to the County Superintendent if the teacher’s employment is not covered by a Collective Bargaining Agreement pursuant to Title 39, Chapter 31.  If the employment of the teacher is covered by a Collective Bargaining Agreement, a teacher shall appeal a decision to terminate an employment contract to an arbitrator. 

FACTUAL BACKGROUND

Since 1980, the Grievant has been continously employed as an Industrial Arts teacher by the Lewistown School District Number One.  Upon successful completion of probation, the Grievant was recommended for, and granted   tenure. The Grievant,  at the time of his dismissal from the Lewistown School District Number One on February 24, 2003,  was tenured teacher. During the period of his employment the Grievant was regularly evaluated and was rated by his evaluators as “Meets or Exceeds District Standards.“  (Assn Ex. 2. ) This is the highest rating obtainable and an examination of each individual evaluation evidences no discipline or behavioral problems.   The Grievant  began his teaching career at the District’s  Junior High School and remained there for the majority of his tenure. The Grievant had been teaching Industrial Arts at the High School for about a year and half prior to  January 28, 2003.

On the morning of January 28, 2003, the Grievant was at his desk in an area of the Industrial Technology classroom that is adjacent to the Wood Shop. While at his desk a student notified the Grievant that student number one was defacing a work  table by putting nails in the surface.

Upon receipt of this information the Grievant proceeded to the Wood Shop where he observed student number one at a work table putting a nail into the table top. Student number one, at the time of his presence in the Wood Shop, should have been watching a television program in another classroom.

The Grievant approached student number one and spoke to him, and placed his hand on the student’s shoulder. Although the exact conversation between the Grievant and the student is the subject of a contextual dispute, what occurred next is not in controversy. The Grievant did remove student number one from the Wood Shop forcibly. The exact placement by the Grievant of his hands on student number one is in controversy, be it the neck, back of the neck or under the chin.  It was acknowledged at hearing by the Grievant that he in fact did make contact with student number one in the cervical area. 

The Grievant has two prior established instances of similar conduct in 1985 and 1994 and their documentation was introduced into evidence.  The 1985 incident resulted in a written warning to the Grievant, and the 1994 incident resulted in a two-day suspension. There are two undocumented incidents of a similar nature that are alleged to have occurred. The first is alleged to have occurred some time prior to 1994 and the second event some time after 1994 but before January 28, 2003.  However there was no compelling evidence introduced to support these allegations and therefore they are hearsay and without merit.  The two undocumented incidents bear no relevance or consequence to the current inquiry.

POSITION OF LEWISTOWN EDUCATION ASSOCIATION , MEA-MFT ON BEHALF OF ITSELF AND THE GRIEVANT

It is the position of Lewistown Education Association that the Grievant was not discharged for good cause.  In order for the District to terminate the Grievant’s employment it must demonstrate that it had good cause to impose dismissal. Such a standard is contemplated by the good cause provision enacted by the state legislature when it mandated that dismissal of a tenured teacher, whose term and conditions of employment are subject to a Collective Bargaining Agreement, be subject to arbitral review. Arbitral inquiry and review of the reasons given by the District to support the dismissal of a tenured teacher must include consideration of and weight given that tenure is a substantial and benefited right. The Association contends that the proper application of this standard would necessarily limit this inquiry to the current event of January 28, 2003. Firstly, the events of 1985 and 1994 are distant from the current accusation and are stale. Secondly, the 1994 incident, by agreement of the parties, provided for its  removal from the Grievant’s personnel file. The agreement was contingent on the Grievant’s behavior in that it required there be no other serious events of a similar nature for the succeeding two-year period. The 1994 incident was removed from the Grievant’s personnel file as no other incidents were found to have occurred during the specified time period.  Because of the 1994 agreement to remove the incident from the Grievant’s personnel file and his successful compliance with it’s terms, it therefore follows it should not be construed against the Grievant. The agreement to remove the 1994 incident from the Grievant’s personnel file wiped the slate clean. Injection of stale events essentially prejudiced the fairness of the hearing before the Board of Trustees. 

The Association argues that the District failed to give adequate consideration to the Grievant’s exemplary evaluations. These evaluations clearly indicate and demonstrate by their plain expression that the Grievant had no problems in his interaction with students. Since this is a consistent finding in all of the Grievant’s evaluations during his twenty-two years of successful tenure, it should be given considerable weight. Twenty-two years of outstanding evaluations is compelling and is sufficient to warrant mitigation of the termination of the Grievant’s employment to a lesser penalty. Neither the Association nor the Grievant argue that it was appropriate for him to push, throw, or carry student number one from the Wood Shop. It is proper to consider whether or not the penalty of termination is reasonably related to the chargeable offense and the totality of the Grievant’s years of service.  

POSITION OF THE  LEWISTOWN SCHOOL DISTRICT NUMBER ONE

            It is the position of the District that it had good cause to terminate the Grievant. The term good cause has been defined to mean “reasonable job-related grounds for dismissal based on a failure to satisfactorily perform job duties, disruption of the employer’s operation, or other legitimate business reason“ (Section 39-2-903, MCA. District post hearing brief EX F).  This District asserts it has met this burden of proof by establishing that the Grievant did use unreasonable force to remove student number one from a classroom. The unacceptable use of force by the Grievant is a violation of §20-4-302 MCA, Discipline and punishment of pupils and the District rules and regulations that prohibit the use of corporal punishment. The District further argues the Grievant had proper notice of the rules and regulations that prohibit the conduct in which he engaged. Evidence of such notice is apparent since  the Grievant was disciplined for similar conduct on two  separate occasions.

     The District conducted an immediate and fair investigation of the  accusation. Upon completion of its investigation, and after   providing the Grievant an opportunity to respond  to the investigations findings, the Superintendent  concluded there existed sufficient grounds to seek the Grievant’s termination.

      The Superintendent recommended  to the Board of Trustees that the Grievant suffer the penalty of termination for his actions of January 28, 2003. Upon proper  service  of notice to the Grievant the Board of Trustees on February 24, 2003, held a hearing on the Superintendent’s recommendation. The Grievant was present at the hearing and was represented in the proceeding by a representative of his choice. During the course of the hearing before the Board of Trustees, the Grievant was given full opportunity to confront the charges and to present any evidence or facts of his choosing,  and he  did so. Following the hearing and after due deliberation, the Board of Trustees, by unanimous vote of its members, accepted the Superintendent’s  recommendation to terminate the  Grievant’s employment.

        Throughout the entire investigation and subsequent hearing by the Board of Trustees, the District complied with and observed the Grievant’s due process rights. Without exception, the Grievant was represented by a representative of his choice and was given full opportunity to address and rebut the charges lodged.

      The Board of Trustee accepted the Superintendent’s recommendation to terminate the Grievant based upon  evidence presented that established  the Grievant did on January 28, 2003,  use unacceptable force to remove student number one from the classroom. The Board further determined that  primarily based on the facts of this incident, and  giving minimal consideration to prior disciplinary matters, the Grievant’s actions of January 28,2003, were sufficient in their own gravity to warrant termination.

Discussion

The essence of this arbitration is whether or not the Grievant’s actions were so serious as to warrant termination by their very commission.  It  has been established that the Grievant had two prior disciplinary actions for offenses of a similar circumstance. Although these events occurred in 1985 and 1994, and are separated by a significant passage of time, to ignore the fact of their occurrence is to deny the existing established record.       These prior disciplinary actions may lack sufficiency to support a progressive discipline theory because of their distance to January 28, 2003. However a review of these prior incidents is not limited to or   restricted to their date of occurrence.  Their value here directly goes to the issues of notice and whether or not the Grievant was aware that the use of physical force upon his students is unacceptable conduct.  The Grievant had more than adequate notice that improper conduct of this nature is a violation of the District’s rules and regulations and §20-4-302 MCA.

Specifically, a teacher has a responsibility to be aware that the use of corporal punishment is prohibited in Montana Public Schools.   The Grievant is presumed to have a general knowledge   against the use of corporal punishment. This prohibition is referenced to in the terms and conditions contained in the   Teachers contract executed by the Grievant and his employer on April 29th 2002.   The contract states in pertinent part  “As consideration to the Teacher for services to be done and performed in accordance to the rules and regulations of the Board of Trustees and their executive officer, the Superintendent of the said School District, and in strict compliance with the laws of the State of Montana…” (Dist. Ex 12).  The Grievant has since 1980 and as a condition of his employment been required to sign a Teachers Contract. The Teachers Contract, by its specific terms mandates compliance with the laws of the State of Montana and the rules and regulations promulgated by and adopted by the Board of Trustees.

With respect to the requirement of notice, the Grievant had the benefit of general notice that is given to all certificated employees by their employment contract. The Grievant had specific notice on two occasions that his individual actions and conduct toward   his students were in violation of District rules and regulations.

The January 28, 2003, removal of student number one by the Grievant from the Wood Shop must be examined. It should be noted that the Grievant does not deny that he removed student number one from the Wood Shop by force. The Grievant does deny that he placed his hands around the neck of student number one at anytime.  According to the Grievant’s testimony, he placed one hand on the back of the student’s neck and the other under the student’s chin. The Grievant denies that he picked up student number one or that he used such force that it caused the student’s feet to be off the ground. The Grievant does  concede that he escorted student number one to the door of the Ag. Room #125. Both the Grievant and student number one agree that the Grievant told student number one that he would make him a deal: That if (student number one) stayed out of his shop he would keep his hands off (student number one. At the conclusion of this statement both the Grievant and student number one shook hands.  

Shortly after the incident the Grievant self-reported himself to Assistant Principal Feller. Both the Grievant and Assistant Principal Feller testified that at first Feller didn’t believe that the incident was of the gravity as described and reported by the Grievant The Grievant told Feller that he had really messed up and that he, Feller, should get his “play book” out.

Although the Grievant does not recall telling Assistant Principal Feller that he “strangled a student” he does concede that he may have said it. This conference resulted in Feller making contact with student number one within an hour of the incident. Student number one relayed his version of the events to Assistant Principal Feller, telling him that the Grievant had strangled him while removing him from the Wood Shop. The Assistant Principal noticed that student number one’s neck was red. Based on his observation and student number one’s statement, Assistant Principal Feller reported the incident to higher authority. This resulted in the immediate commencement of a formal investigation.

Student number one testified that he was pounding nails into a table in the Wood Shop when the Grievant approached him and calmly put his hand on his shoulder. During the ensuing conversation, for reasons that student number one is unable to explain, the Grievant became hostile and started chocking him with both hands around the neck. While chocking him, student number one testified that he carried him out of the Wood Shop to the door of room #125. Student number one testified that his statement of the incident, contained in (District Ex. 3), is in fact his own statement and that it is true and correct and that he made it  to the District’s investigators. During the hearing, the testimony of student number one was subject to cross-examination by the Grievant’s counsel.

Student number two testified that he was present in the Wood Shop and saw the Grievant remove student number one by the neck. He testified that the Grievant carried student number one to the door of Ag. Room  #125 and that his feet were off the ground. The testimony of student number two was subject to cross-examination by the Grievant’s counsel.

The testimony of Assistant Principal Feller and student’s number one and two withstood the rigors of cross-examination. Their testimony was unrefuted.  Therefore, it is most likely that the removal of student number one as testified to by the students did in fact occur as they described it.

The Association argues that the Grievant’s years of service and above average evaluations should serve to mitigate the penalty of termination. However, years of service and above average evaluations must be weighed against the unreasonableness of the Grievant’s actions.

The Grievant on January 28, 2003, did lose his temper and acted unreasonably. In fact, the Grievant acknowledged this when he testified that he “zoned out” while removing student number one.  There is no doubt that the Grievant realizes the severity of his actions and regrets them. However, the test that must be applied here is whether or not the Grievant’s actions were reasonable.

The action of student number one is replete with acts of disrespect for authority and his school. However irritating and maddening  the disrespect shown by student number one for the Grievant may be, the Grievant’s reaction to them cannot be considered reasonable.

The Grievant’s forcible removal of student number one from the Wood Shop is not justified by the facts or circumstances presented.  No compelling evidence was produced that student number one engaged in any threatening   activity or provoked the Grievant’s reaction other than by the circumstance of his disobedience.  No evidence was produced that the actions of student number one posed a physical threat to the Grievant or to students in the Wood Shop. The evidence supports the conclusion that it was the Grievant  who escalated a student’s discipline problem into a physical altercation.  It is true that a teacher is necessarily held to a high standard of forbearance when it comes to his or her dealing with disrespectful students.  A student’s disrespect for the rules and regulation imposed upon him is no excuse for a physical confrontation.   The Grievant’s   physical removal of student number one from the Wood Shop was not warranted by the circumstances and was not reasonable.  The Grievant’s actions are of sufficient gravity of their own weight to justify termination. The Grievant’s termination cannot be mitigated by excellent evaluations during  years of service. The Grievant performance as a teacher is not at issue, but his conduct is, and as such the mitigating factor of years of service is not prevailing.  The District did have good cause to terminate the Grievant.

FINDINGS AND CONCLUSION

Both the Association and the District recite the seven factors that comprise just cause or good cause in their closing briefs. The Arbitrator will address them as found in Enterprise Wire, 46 LA 359 ( Daugherty, 1966)

1)      Did the company (District) give the employee forewarning or foreknowledge of possible or probably disciplinary consequences of the employees conduct?

      Yes.   The Board of Trustees has a policy that prohibits its employees from the use of corporal punishment. It communicates this prohibition through its Teachers Contract and the requirement   that its employees observe Montana State Law. Montana State Law forbids the use of corporal punishment in public schools. In the instant case, the Grievant had two specific notices that his conduct was unacceptable. The Grievant had both a general and particular forewarning   informing him that his individual conduct was unacceptable. 

2)      Was the company’s  (District) or managerial order reasonably related to (a) the orderly, efficient, and safe operation of the company’s (District) business and (b) the performance that the company (District) might properly expect of an employee?

      Yes.   Montana State Law supports the District’s rules against the use of corporal punishment. The prohibition against the use of corporal punishment is necessary to protect the health and welfare of the students and to advance the educational program. The District has every right to expect their employees’ performance to be in compliance with state law, its rule and regulations. 

3)      Did the company (District), before administrating discipline to an employee make an effort to discover whether the employee did in fact violate or disobey a rule or order of management?

      Yes.  The District conducted a full investigation and the Grievant was given an opportunity to respond. The results of the investigation caused the Superintendent to recommend dismissal. The Board of Trustees held a hearing on February 24, 2003, at which time the Grievant was afforded his full due process rights. The Grievant was given full opportunity to introduce evidence, to call witnesses on his behalf, and was allowed to cross–examine the District’s witnesses in defense of the Superintendent’s recommendation for termination.

4)       Was the company’s (District) investigation conducted fairly and objectively?

       Yes.   The Grievant self-reported the incident. This gave the District reasonable suspicion that a serious event occurred. The District confirmed its suspicion by interviewing individuals involved in the incident. The Grievant was afforded full opportunity to respond to the allegations. The District did not impose discipline until the investigation was completed.

5)      At the investigation did the “judge “ obtain substantial evidence or proof that the employee was guilty as charged?

       Yes.  The District, through its investigation, established that the incident occurred. This was accomplished when the Grievant self-reported the incident and was confirmed by a witness to the event.  The District produced creditable witness to the event who withstood the rigors of cross-examination at the arbitration hearing.

6)       Has the company (District) applied its rules, orders, and penalties even-handedly and without discrimination to all employees?

     Yes.  The District has not had a similar issue in its past.  Any discipline imposed on   

     any individual concerning matters not related to this arbitration were not considered. No evidence was submitted alleging unfair or arbitrary disciplinary practices by the District. 

7)      Was the degree of discipline administered by the company (District) in a particular case reasonably related to (a) the seriousness of the employees proven offense and (b) the record of the employee in his service with the company (District)?

      Yes.   The penalty of termination is reasonably related to the Grievant’s proven offense. The gravity of the offense is not trivial and warrants discharge on its face. There are categories of misconduct that are so severe  that on their first offense justify termination.  The Grievant had notice general and specific  that his behavior toward his students would not be tolerated.

AWARD

            The grievance is denied.


            _________________________            ________________________
            John F. Wormuth
                    Arbitrator

 

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