28 day free trial

 

 

  

LawMemo - First in Employment Law

Home MyLawMemo About Us   Arbitration Articles

Search arbitrators | National Arbitration Center | Search awards 

 

Title: Southern State Community College and Southern State Education Association
Date:
September 7, 2004
Arbitrator:  Richard D. Sambuco
Citation: 2004 NAC 138

IN THE MATTER OF ARBITRATION

BEFORE

RICHARD D. SAMBUCO

 

SOUTHERN STATE COMMUNITY COLLEGE

and the

SOUTHERN STATE EDUCATION ASSOCIATION

 )
 )
 )
 )
 )
 )
 ) 

OPINION

and

AWARD

AAA CASE NO.:             52 390 00188 04

GRIEVANT:                      Dora L. Davison, Assistant Professor

REPRESENTING
THE EMPLOYER:           Rachel S. Zahniser
                                           Attorney at Law
                                           Taft, Stettinius & Hollister, LLP                                            

REPRESENTING
THE ASSOCIATION:       Parry L. Norris
                                           Labor Relations Consultant
                                           Ohio Education Association                                               

DATE OF HEARING:      June 17, 2004

RECEIPT OF
TRANSCRIPT:                 July 3, 2004

RECEIPT OF POST-
HEARING BRIEFS:         August 12, 2004        

DATE OF DECISION:     September 7, 2004


PRELIMINARY STATEMENT

            On June 17, 2004, an arbitration hearing was held in Hillsboro, Ohio by and between the Southern State Education Association, hereinafter referred to as the “Association” and the Southern State Community College, hereinafter referred to as “Southern State” and/or “College”.

            Richard D. Sambuco was mutually selected by the parties through the Administrative Services of the American Arbitration Association to serve as Impartial Arbitrator.

            The case for the College was presented by Rachel S. Zahniser, Attorney.  Also present for the College was Lawrence Dukes, President of the College; Marsha Snyder, Dean of Health Sciences; Carolyn Campbell, Assistant Professor; and Sonia Grant, Assistant Professor.

            The case for the Association was presented by Parry Norris, Labor Relations Consultant, OEA.  Also present for the Association was William Horne, Assistant Professor; Brenda Tilton, Assistant Professor; and Dora A. Davison, Assistant Professor and the Grievant in this matter.

            There were no objections with regard to this matter coming before this Arbitrator on either substantive or procedural grounds.

            Equal opportunity was provided the parties for the presentation of evidence, examination of witnesses and oral argument.

            A formal transcript of the proceedings was prepared by Dinah T. Phillips, Court Reporter.

            The Arbitrator also recorded the hearing on cassette tapes for his personal use in preparing this decision.

            The parties elected to file post-hearing briefs.  These briefs having been filed in a timely manner, the record is now closed and the matter in dispute is ready for final decision.

STATEMENT OF THE CASE

This matter comes before the Arbitrator as a result of a grievance dated December 18, 2003 (Joint Exhibit No. 2), which reads in pertinent part as follows:

“Complaint of Grievant:  College failed to maintain standards; College disciplined grievant without just cause; College charged grievant for personal leave (11-26-03) even though she was on a paid administrative leave.

 

Remedy sought:  (1) Cease and desist from altering Grievant’s winter quarter 2004 schedule.  (2) Written apology from Academic Dean for inappropriate removal of grievant from fall quarter assignment; (3) Reinstatement of personal leave day; (4) Any and all other relief to make the grievant whole.

 

The Association reserves the right to amend the grievance at any step.

                                                /s/Dora Davison/pn   Date:  12/18/04”

The Step 2 written response to the Grievant (Dora Davison) from Dr. Ernest Cronan, Vice President of Academic Affairs, dated January 13, 2004 (Joint Exhibit No. 2) is almost four (4) typewritten pages long, and in the interest of brevity, will not be reproduced here.

            The Step 3 written response to the grievance dated March 8, 2004 (Joint Exhibit No. 2) from Dr. Lawrence N. Dukes, President of the College, reads as follows:

“Rather than repeat much of Dr. Cronan’s response at the Step 2 level of the grievance, this response will instead address primarily the remedies sought in the grievance with reference to the articles cited only as necessary.

1)   It is obviously too late to change the grievant’s winter quarter schedule as the quarter is now nearly over.  It is, however, appropriate to address the cause of the changes in the grievant’s schedule and the subsequent spring quarter assignment.  The administration is very concerned about the breakdown of inter-faculty relationships among the ADN faculty based on the causes of the incident that precipitated the grievance.  The concept of a “cooling off” period, a well known and generally accepted strategy in collective bargaining circles, applies very well in this case.  While it is not appropriate to alter schedules at present, the administration proposes that a consultant from outside Southern State be brought to the college to attempt to resolve the issues that currently divide the above referenced faculty.  The issues are academic in nature and the faculty need to be of one mind as they prepare the nurses of the future.  The consultant could be brought in from the National League of Nursing or some other creditable organization to mediate the issues and otherwise shed light on appropriate teaching strategies.  The results would determine future assignments for the grievant.

2)   If the actions taken by the administration in this case have caused undue distress to the grievant, I am truly sorry.  That was never the intent but the upset and concern generated by the situation did call for some action and to date that situation has not ameliorated.  I would repeat the Academic Vice President’s offer to place an appropriate letter in the grievant’s personnel file and would add a similar offer from me. 

3)  Since the administration did insist that the grievant not meet her class on the last class meeting, it is reasonable to reinstate a personal leave day even though one had already been requested and approved for the day in question.

4)  The lack of specificity in this proposed remedy makes it virtually impossible to address.  I would repeat, however, that the administration views the issue as an academic matter that involves the entire ADN faculty rather than a contractual matter.  It is essential that a department that is an integrated as the nursing faculty has to be able to operate as a unit and that is simply not currently the case.  The students are my primary concern in this matter and internal dissension in a program that is as faculty interdependent as nursing will have a detrimental effect on their learning.  Until I can be comfortable in knowing that the academic issues involved in this situation are resolved, Ms. Davison will be assigned classes from other disciplines for which she is qualified.

Lawrence N. Dukes

President”

BACKGROUND OF THE CASE

            The parties to this arbitration are currently working under their Collective Bargaining Agreement (Joint Exhibit No. 1) effective September 1, 2001 through August 31, 2004.

            Southern State Community College is a two-year institution of post-secondary education whose main campus is in Hillsboro, Ohio.

            The Grievant, Dora Davison, received her Bachelor of Science degree in nursing from Eastern Kentucky University in 1978 and a Master of Science in nursing from the University of Phoenix in 2002.  Ms. Davison has been an instructor at Southern State Community College (SSCC) for twenty-one (21) years, and is the most senior member of the nursing faculty.

            There are two (2) levels of nursing instruction at the College:  Level 1, which is considered to be Freshman level nursing (i.e., nursing courses designed to prepare the student to become certified as a Licensed Practical Nurse, LPN), and Level 2, which is considered to be Sophomore level nursing (i.e., nursing courses designed to prepare the student to become certified as a Registered Nurse, RN).  Those courses designed to prepare the student to become certified as a Registered Nurse are referred to as “ADN”  (Associate Degree in Nursing) courses.  Lower level nursing courses (Level 1 courses) are referred to and/or utilize the prefix of NRSG for nursing courses offered at the freshman level.

            Prior to the incident giving rise to this grievance, Grievant Davison taught some nursing courses at Level 2 (ADN courses) of the nursing program.  Subsequent to the incident giving rise to this grievance, Grievant Davison is no longer allowed to teach nursing courses at Level 2, or the ADN level of courses.

            Subsequent to the incident giving rise to this grievance, Grievant Davison is assigned to teach Level 1 (Freshman level nursing courses) LPN courses and other courses (i.e., psychology and biology) to complete her workload.

            What was the incident giving rise to this grievance?

            On Thursday, November 21, 2003 at around 1:00 p.m., Carolyn Campbell entered a clinical classroom that had just previously been vacated by a group of ADN (Level 2) students.

            On the window  sill in the empty room, Witness Campbell testified that she found two (2) documents: 

The first document (College Exhibit No. 1) is a seven-page typewritten paper, numbered in sequential order (from 1 to 46) of questions and answers.  This document (College Exhibit No. 1) had as its title “Exam 5 Questions & Answers.”

The second document (College Exhibit No. 2) is a four-page hand-printed document of notes ostensibly pertaining to medical terminology.  This document had as its title “1st Hand Out”.

College Witness Carolyn Campbell testified that there was a third sheet of paper containing the name of the student that the two (2) College Exhibits belonged to.  Ms. Campbell testified that she made copies of all three (3) documents, returned them to the window sill and turned the copies over to Marsha Snyder, Director of Health Sciences.

Both Carolyn Campbell and Marsha Snyder testified that they were concerned that Grievant Dora Davison was providing students with the exam questions in advance of the students taking the exam.

Ms. Snyder expressed concern that the student’s examination notes and the exam itself (College Exhibit No. 3) corresponded sequentially by number (i.e., the subject matter on Question 1 of Nursing 201, Exam V Fall 2003 (College Exhibit No. 3) was directly related to the subject matter on the student’s typewritten “study guide” (College Exhibit No. 2) and etc. with regard to Questions 2 through 40.)

Ms. Snyder questioned the student[1] and testified that the student stated “Dora (the grievant) gave us the test questions in class.”

On November 24, 2003, Grievant Davison was called into a meeting and questioned with regard to providing students with exam questions in advance of taking their exam.

Grievant Davison admitted that she did orally review the exam questions with the students in advance of their taking the exam.

From the testimony adduced at the hearing, the developing scenario appears to be that Grievant Davison provided subject matter of the examination in sequential order, but did not provide the students with the “answers” to the questions.  The students’ responsibility was to then go and find the answers to the questions prior to taking the exam.  This scenario also corroborates the response given by the student to Marsha Snyder, Dean of Health Sciences.

The Grievant had one day of lecture left in (ADN) Nursing 201 for the fall quarter 2003, but was not allowed to teach that one day. The Grievant was also removed from her assigned (LPN) Nursing 101 course. (Tr.86, 103, 218,255)  Because of her action, the Grievant was removed from the two (2) Nursing courses for the remainder of the fall quarter 2003.

In the subsequent winter quarter and spring quarter of 2004,the grievant was denied her recommendation[2] to teach ADN (Registered Nursing) courses. Instead, she was assigned courses in Level 1 (Licensed Practical Nursing) and other courses (Biology) outside the ADN Level 2 courses to complete her required teaching assignment (full load).

The grievant was placed on administrative leave, suffered no loss of wages and was not reduced in rank.  She was denied the opportunity to teach ADN (Registered Nursing) courses in the subsequent winter and spring quarters.

The Association characterizes this dispute as a disciplinary problem and alleges that the College’s refusal to allow the Grievant to teach upper level nursing courses (ADN Registered Nursing courses) as disciplinary action without just cause.  The college maintains that this is a contract interpretation issue and not a disciplinary matter.

THE ISSUE

            By refusing to allow the Grievant to finish teaching two (2) nursing courses (Level 2 Nursing Course 201 in the ADN program and Level 1 Nursing Course 101 in the L PN program) and by not assigning the Grievant to teach regularly scheduled ADN (Level 2) courses in subsequent quarters (Winter and Spring), did the College violate an express and implied term of the Collective Bargaining Agreement?  If the answer is yes, what is the remedy?

CONTRACTUAL LANGUAGE

The contractual language relating to this issue is drawn from the Collective Bargaining Agreement (Joint Exhibit No. 1) effective September 1, 2001 through August 31, 2004:

“ARTICLE 1 – RECOGNITION

1.07    MANAGEMENT RIGHTS:  Except as specifically stated otherwise in this Agreement, the College maintains the right and responsibility to:

1.         Determine matters of inherent managerial policy which include, but are not limited to, areas of discretion of policy as the functions and programs of the College, standards of service, its overall budget, utilization of technology, and organizational structure;

2.         Direct, supervise, evaluate, or hire Employees;

3.         Maintain and improve the efficiency and effectiveness of the College;

4.         Determine the overall methods, process, means or personnel by which the College’s operations are to be conducted;

5.         Suspend, discipline, demote, or discharge for just cause, or lay off, transfer, assign, schedule, or retain Employees;

6.         Determine the adequacy of the work force;

7.         Determine the overall mission of the College;

8.         Effectively manage the work force;

9.         Take actions to carry out the mission of the College

 

ARTICLE XIV – ASSIGNMENTS & TRANSFERS

 

14.01  TEACHING ASSIGNMENT DEFINED:  A teaching assignment is defined as the courses for which an employee is responsible for instruction.

 

14.02  TRANSFER DEFINED:  A transfer is a change in the teaching assignment of the Employee for an Academic Quarter.

 

14.03  APPLICATION FOR SPECIFIC TEACHING ASSIGNMENTS:  The College shall distribute a preliminary schedule of classes to be offered each Quarter.  The College shall make a good faith effort to notify employees of additional credit class offerings prior to the classes being staffed.  Within two weeks following the distribution of this preliminary schedule, Employees who wish to be considered for specific teaching assignments must give notice in writing to the College in which the desired teaching assignments are identified.  Any deviation from the Employee’s selection and the College assignment will be discussed with the Employee prior to publication of the final schedule and assignments.

 

14.04  PUBLICATION OF FINAL SCHEDULE OF CLASSES AND ASSIGNMENTS:  After determination of Employee teaching assignments, the College shall establish and post a Schedule of Classes and Employee teaching assignments for each Quarter.  For the Fall Quarter this shall be done by the July 1 prior to that Fall Quarter, and for the Winter, Spring and Summer Quarters, this shall be done approximately two weeks prior to the end of the previous Quarter.

 

14.05  OPTION FOR ADDITIONAL CLASS (ES):  An Employee who wishes to be considered for an assignment to teach an additional class or classes to which no Employee has been assigned in the schedule of classes shall give written notice to the College within ten calendar days after the mailing of the schedule of classes to each Employee by campus mail.  Should the schedule of classes not be available for distribution during the Academic Year (Fall, Winter or Spring Quarters) then the schedule will be mailed to the Employee’s home address.

 

14.06  CRITERIA FOR ASSIGNMENTS:  In assigning Employees who have given notice as provided in Section 14.03, the College shall consider the following factors:

            a.         Skill and ability.

            b.         Work performance.

            c.         Education and training.

            d.         Experience.

            e.         The overall staffing needs of the College;

f.           The qualifications of remaining Employees to perform remaining assignments.

g.          Seniority.

Where factors (a) through (d), above, are relatively equal, seniority shall govern.  The College may, however, based on the needs of the College, including factors (e) and (f), above, make assignments to Employees other than those who would have been assigned pursuant to the preceding sentence.

 

14.09  TRANSFERS:  After the assignment of Employees as provided in Section 14.04 of this Article XIV, the College may, after consultation with an affected Employee, reassign and transfer an Employee because new classes or sections of courses are offered or classes or sections of courses are eliminated from the schedule.

 

ARTICLE XIX – EFFECTS OF THE AGREEMENT

 

19.05  MAINTENANCE OF STANDARDS:  The College shall maintain all terms, conditions, and benefits of employment at not less than the level in effect as of the effective date of this Contract.

 

MEMORANDUM OF UNDERSTANDING

BETWEEN

SOUTHERN STATE EDUCATION ASSOCIATION

AND

SOUTHERN STATE COMMUNITY COLLEGE

 

 

The Southern State Education Association (hereinafter “Association”) and the Southern State Community College (hereinafter “College”) are desirous of amicably resolving the grandfathering of four quarter contracts.

Therefore the parties agree as follows:

These positions are grandfathered as four quarter contract positions as long as the individual currently employed in that position remains in that position.

2 RN positions:         Dora Davison
                                                Carolyn Campbell

3 LPN positions:       Marilyn Jones
                                               Teresa Grooms
                                                Martha Jett

2 Engineering:          Tom Stroup
                                                Glenn Robison

1 Librarian:                 Louis Mays

1 “Your Place”:           Karen Newby”

DISCUSSION ON THE MERITS

Interpretation of Contract Language

Intent of the Parties

            The rule primarily to be observed in the interpretation of agreements is that the interpreter must, if possible, ascertain and give effect to the mutual intent of the parties.  The collective bargaining agreement should be construed, not narrowly and technically, but broadly so as to accomplish its evident aims1.

            In determining the intent of the parties, inquiry is made as to what the language meant to the parties when the agreement was written.  It is this meaning that governs, not the meaning that can possibly be read into the language.2

            The problem of interpretation arises from the fact that the words in a given document are written at a particular time by persons with special problems and purposes in mind, and then at a later time must be given meaning by other persons in the context of entirely different situations and problems not foreseen or even contemplated by the drafters.3

            Recognizing that the agreement should be interpreted so as to effectuate the intention of the parties, the difficulty is that the parties might not have had a specific intent on how the language they agreed to would be applied.

            If the parties had a specific intent, and it was ascertainable, the grievance quite possibly would have been resolved prior to being presented to an arbitrator.

            The best that can be done is to try to determine the general intention of the parties and apply that to the specific problem.4

                ARTICLE III, GRIEVANCE PROCEDURE, 3.13, ARBITRATOR’S POWER AND AUTHORITY, reads in pertinent part as follows:

            “The sole function of the arbitrator shall be to interpret the express terms of this Agreement and to apply them to specific facts presented at the arbitration hearing.  The arbitrator shall have no power to change, amend, modify, ignore, add to, delete from or otherwise alter this Agreement; nor go beyond the issue raised by the original grievance; nor to find a violation of any provision of the Agreement not specifically identified in the written grievance submitted at Step Two of Section 3.112 of this Agreement …”    (Emphasis added.)

            The issue(s) raised by the original grievance and specifically identified in the written grievance submitted at Step Two of Section 3.112 reads in pertinent part as follows:

            “College failed to maintain standards; College disciplined grievant without just cause; College charged grievant for personal leave (11-26-03) even though she was on a paid administrative leave.”

The issues with regard to “College charged grievant for personal leave (11-26-03)” has been rendered moot by the College President’s testimony, (Tr. 135).  According to the record, the personal day requested by the Grievant for the day of Exam V has been reinstated.

The issue of being placed on paid administrative leave is concluded to be nebulous due to no documentation to that effect, and the person (Dr. Cronan) attributed to having made the “paid administrative leave” comment is no longer with the College and was not available to testify.

With regard to the issue stated in the grievance, “College failed to maintain standards,” many collective bargaining agreements contain contractual provisions requiring the continuance of unnamed past practices in existence at the execution of the Agreement.

In the case at bar, the parties to the Agreement (Joint Exhibit No. 1) have agreed to include the following language at:

“19.05 MAINTENANCE OF STANDARDS:  The College shall maintain all terms, conditions and benefits of employment at not less than the level in effect as of the effective date of this contract.”

The College applies the following process in making teaching assignments.  The Vice President of Academic Affairs develops and distributes a schedule of classes, (Tr. 134).  Typically, department’s work together to decide which instructors will teach which courses, (Tr. 134).  Instructors submit a form to their dean indicating which classes that they want to teach, (Tr. 59).  The dean, after reviewing the instructor’s request and insuring that all courses are covered, forwards the request to the Vice President of Academic Affairs, (Tr. 95).  The Vice President of Academic Affairs then decides who teaches which classes, (Tr. 134, 142).  The College reserves the right to reject an instructor’s preferences; however, the recommendation of the instructors are usually granted, (Tr. 59, 64).  (Emphasis added.)

From my experience as a former college administrator, this procedure is a typical and expedient method of staffing classes at the post-secondary educational level.

The record will show that this procedure has been a long-standing practice at Southern State Community College and, in addition, is memorialized in express language of Section 14.03 and 14.04 of the Agreement (Joint Exhibit No. 1).

There is no denying that the Management Rights clause, ARTICLE 1, Section 1.07 provides, among other things, the right to “suspend, discipline, demote, or discharge for just cause, or layoff, transfer, assign, schedule, or retain employees.”

But these rights are prefaced by the caveat that states:

“Except as specifically stated otherwise in this Agreement …”

The College contends that its decision to not allow the Grievant to teach her last lecture class of the fall quarter of 2003 and its decision to not assign the Grievant to teach ADN (Registered Nurses, Level 2) courses in the Winter and Spring quarters is a matter of contract interpretation.

The College’s justification for the above decision is due to a lack of trust in her (Grievant’s) work performance:

“because Grievant gave the exam questions to her students, the College lacked trust in Grievant’s work performance and her ability to teach ADN students appropriately, (Tr. 104-05).

The College argues that Section 14.09 recognizes that changes may occur after the final posting under Section 14.04 by providing that Southern State may reassign and transfer faculty members because classes are added or eliminated from the schedule.  (Joint Exhibit No. 1 at 46-47)

The College then argues that Section 14.09 does not apply because Nursing 202, the course the Grievant requested, was not added or eliminated.

TRANSFERS:  After the assignment of Employees as provided in Section 14.04 of this Article XIV, the College may, after consultation with an affected Employee, reassign or transfer an Employee because new classes or sections of courses are offered or classes or sections of courses are eliminated from the schedule.”  (Emphasis added.)

As previously stated, in determining the intent of the parties, inquiry is made as to what the language meant to the parties when the agreement was written.  It is this meaning that governs, not the meaning that can possibly be read into the language.

The intent of Section 14.09 is quite clear and does not lose its applicability due to Nursing 202 not being added or eliminated, as the College maintains.

The intent of Section 14.09 is designed to provide the College with some flexibility in faculty assignment because new classes or sections are added or originally scheduled classes are eliminated.  (Emphasis added.)

The College’s argument supports this intent by making the following points in its post-hearing brief:

1.      What if not enough or too much interest is expressed in a course?

Not enough interest in a course could cause the elimination of a course or section, thereby requiring the reassignment and transfer of an employee to another course or section of another course.  Too much interest in a course could result in the addition of new classes or sections, thereby requiring a faculty person to assume an additional course or section.  (See Section 14.08, OVERLOAD, Joint Exhibit No. 1).

2.      What if an instructor falls ill? 

Section 14.09 does not contain language that addresses the reassignment or transfer of a faculty member due to another faculty member’s absence because of illness.  The record (Tr. 268) will show that other faculty have “picked up” the grievant’s classes during a period of absenteeism.

3.                  What if, as here, Southern State discovers that an instructor has not performed as expected after the schedule and teaching assignments have been posted?

Section 14.09, TRANSFERS, is specific as to what the College may do after the schedule and teaching assignments have been posted, as provided in Section 14.04 (Joint Exhibit No. 1).  (Emphasis added.)

The College further argues that it did consider the factors listed in Section 14.06, CRITERIA FOR ASSIGNMENTS, in assigning the Grievant, and because the College lost trust in the Grievant’s work performance and her ability to teach ADN students appropriately, the decision was made to not assign the Grievant to ADN courses.  (Emphasis added.)

The record will show that the Grievant was suspected of providing students with exam information (Tr. 76), the students had access to the exam because the numbering and the questions were the same (Tr. 132-33) and Dr. Duke’s review of the Grievant’s lecture notes and the final exam indicated that the Grievant intended to give the students the final exam questions as well as the questions to Exam V, (Tr. 87).  (Emphasis added.)

This is essentially the testimony of Dean Marsha Snyder, as expressed in the College’s post-hearing brief.

The inference that the Grievant intended to give the students the final exam questions as well as the questions to Exam V is an assumption on the witness’s (Dean Snyder’s) part.  The fact that Dr. Dukes was even in this meeting was because the Grievant was accused of previously providing the students with the questions to Exam V.

Returning to Section 14.06, CRITERIA FOR ASSIGNMENT, the only one (1) of seven (7) criteria that the College can point to as rationale for not assigning the Grievant to teach ADN courses is “work performance”, and that criteria specifically states “work performance;” it does not include “and her ability to teach ADN students appropriately.”  The College is adding language to Section 14.06 that is not expressed in the criteria for assignment.

The College contends “because Grievant gave the exam questions to her students, the College lacked trust in Grievant’s work performance and her ability to teach ADN students appropriately, (Tr. 104-05).  (Emphasis added.)

The College continues, “Based on this lack of trust, as well as faculty input, the decision was made to not assign Grievant to ADN courses,” (Tr. 90, 94).  (Emphasis added.)

The College further adds, “Because there was no proof that Grievant gave students exam questions ahead of time in her other courses (i.e., first level LPN courses and other courses outside the nursing field), Southern State’s decision was limited to ADN courses, (Tr. 128-29).

This lack of trust in the Grievant’s work performance, taken together with “there was no proof that Grievant gave students exam questions ahead of time in her other courses limited the College’s decision to ADN courses” is an incongruous and disingenuous argument.

Lack of trust in the Grievant’s work performance is one rationale.  To tie that rationale to a specific area of instruction (ADN courses) alerts this Arbitrator to an underlying reason(s) for not assigning the Grievant to teach ADN courses.

That underlying reason is based on the following facts:

1.                  All ADN faculty are required to teach clinicals, except the Grievant.  The Grievant was allowed an accommodation to not teach in a clinical setting, (Tr. 267).

The record (Tr. 171) will show that there are only three (3) faculty members that teach ADN (Level 2) courses.  They are Carolyn Campbell, Sonia B. Grant and the Grievant, Dora Davison.

2.                  According to the College’s post-hearing brief, “On January 28, 2004, all members of the ADN faculty, except for the Grievant, submitted a letter …” (College Exhibit No. 7) that reads as follows:

“Dear Dr. Dukes & Dr. Cronan:

The Associate Degree Nursing Program faculty have met as a complete group and wish to relay our unanimous opinion that it is not in the long-term best interest of students to reduce their level of learning by using teaching methods which include review for course exams at what amounts to the knowledge level (rote) rather than the application or critical thinking level.  Within the second level of the program, students must be expected to function with the competence expected of them at the entry level of nursing practice.  Students’ ability to learn is limited by giving them the exact material that will be included in the evaluation process and examinations.

 

We are absolute in our belief that faculty must include ethical behavior while exercising academic freedom, and are responsible for maintaining an ethical environment in the classroom as well as in nursing practice.

 

The final purpose of this letter is to express our appreciation for the amount of time you have given to our situation and the position you have taken which supports our beliefs regarding the ethical practices we feel must be maintained.

 

                                                Sincerely,

 

/s/Sonia B. Grant                        /s/Carolyn Campbell

RN, MS                                       RN, MS, CNP

 

/s/Mary Jo Wall                        /s/Kelly Colliver            /s/Kami Davis
RN, MS, CNP                          RN, MS                         RN, BSN”                                   

Faculty members Wall, Davis and Colliver teach at the first level (LPN) of the nursing program.  Faculty members Grant, Campbell and Grievant Davison teach at the second level (ADN) of the nursing program, (Tr. 171).

Carolyn Campbell is the faculty person that found the student’s notes (College Exhibit Nos. 1 and 2) on the window sill at the clinical site, (Tr. 40).

Kami Davis is Carolyn Campbell’s daughter, (Tr. 244). 

According to the direct testimony of Dean Snyder, Kami Davis is not qualified to teach the classes that the Grievant (Ms. Davison) was teaching.  “She (Kami  Davis) is just working on a Master’s.  She doesn’t have a Masters Degree” (Tr. 266).

Under cross  examination Dean Snyder testified as follows:

    Q.               “Isn’t it true that although a Master’s Degree in Nursing is preferred, a Bachelor of Science in Nursing may be qualified for teaching in the RN (Second Level) program?”

  1.      “ But I don’t… Our faculty would not want somebody not “masters prepared” to teach a Levle II (RN) class", (Tr. 271)

3.  Association Exhibit No. 2 is a copy of a brochure announcing the “Pinning Ceremony & Graduation” of Associate Degree in nursing students dated June 4, 2004. 

On the back side of this brochure is a listing of Nursing Faculty and Administration, along with their titles.

Of the twelve (12) nursing faculty and administration names listed along with their titles, the name of Dora Davison or her title was not among those listed, even though Ms. Davison (the Grievant) was still teaching (LPN Level 1 courses) in the nursing program.

The College argues that it did not violate the Memorandum of Understanding.

The parties to the Agreement (Joint Exhibit No. 1) have entered into a Memorandum of Agreement.  This memorandum of Agreement reads in pertinent part as follows:

“These positions are grandfathered as four quarter contract positions as long as the individual currently employed in that position remains in that position.

2 RN positions:            Dora Davison
                                                  Carolyn Campbell

3 LPN positions:         Marilyn Jones
                                                  Teresa Grooms
                                                  Martha Jett”  (Retired)  (Tr. 209)

According to the record, there is a vacancy in one of the LPN positions.

The College’s position is that Grievant Dora Davison is no longer allowed to teach RN courses due to lack of trust in her work performance and her ability to teach ADN (Level 2 RN) courses appropriately.

The College contends that although the Memorandum of Understanding lists persons by position, the parties’ intent was to indicate that the listed persons would have four-quarter contracts as long as they remained with Southern State.  This was the testimony of the President of the College at Tr. 150-51.

This intent was corroborated by the Association’s Grievance Officer, William Horne, when he testified that, “The understanding is once a person was in a four-quarter contract and hired to do a four-quarter contract, then they stayed in a four-quarter contract,” (Tr. 209).  (Emphasis added.)

Notwithstanding both the President of the College and the Grievance Officer’s explanations of the intent of the language of the Memorandum of Understanding, that intent is not expressed in the language of the Memorandum of Understanding.

First, what happens when the current President and the Grievance Officer (Mr. Horne) are no longer with the College to explain their understanding of the language’s intent?

Second, the language is specific when it states:  “These positions are grandfathered as four-quarter contract positions.”  (Emphasis added.)

Third, if the Grievant is no longer permitted to teach RN courses (Level 2), how can she be considered as holding down an RN position?

Fourth, since the Grievant is only allowed to teach LPN (Level 1) courses in the nursing curriculum, the logical next step is to classify her to the vacant LPN position.

Fifth, if the Grievant was only hired to do a fourth-quarter contract at the RN position, it could be construed that she is no longer eligible for a four-quarter contract at the RN position since she is no longer teaching at the RN (Level 2) position.

Sixth and finally, while this possibility was not explored, suppose the College decides not to schedule LPN (Level 1) courses in the fourth quarter, concluded to be the summer schedule of classes.

The College argues that the Grievant has not been disciplined because the Grievant has not suffered any reduction in pay, rank or course load, (Tr. 90-91, 136-137).  The College cites a sixth circuit case in which the court ruled that reassignments without changes in salary, benefits, title or work hours do not constitute an adverse employment action (Policastro v. Northwest Airlines).

An adverse employment action is a “materially adverse change in the terms and conditions of employment because of the employer’s conduct,” Kocsis v. Multi-Care Management, Inc., 97 F3d 876-885 (6th Cir. 1996).

Reassignments without changes in salary, benefits, title or work hours usually do not constitute adverse employment actions, Id at 885, 886.  (Emphasis added.)

            In the Policastro v. Northwest Airlines case, the issue involved the relocation of an employee, Barbara Policastro, from one location to another location, and her complaint was based on sex discrimination under Title VII, age discrimination under the ADEA and whether or not her reassignment rose to the level of constructive discharge.

In this instant case, we have the Grievant classified in one (1) of two (2) RN positions, who is no longer allowed to teach RN (Level 2) nursing courses.

Notwithstanding the fact that her college title (i.e., current rank), Assistant Professor, has not changed, the fact that she has not been allowed to teach in the RN position in which she is grandfathered for three quarters (winter, spring and summer) leads to the conclusion, based on the language of the Memorandum of Understanding (Joint Exhibit No. 1 at 72), that the Grievant is no longer employed in one (1) of the two (2) (grandfathered) RN positions.

To reiterate the language of the Memorandum of Agreement:

“These positions are grandfathered as four quarter contract positions as long as the individual currently employed in that position remains in that position.”

Since the Grievant has not been allowed to teach in the RN position for three (3) quarters, a case can be made that she no longer remains in that RN position.  Since the Grievant has only been allowed to teach Level 1 (LPN) courses, among others to fill out her full teaching load, for three (3) quarters a case can be made that she no longer remains in the RN position.

Conversely, given the above analysis, a case could be made that the Grievant should be classified into the vacant LPN position.  This results in an adverse employment action.

The record is clear that teaching ADN nursing courses at Level 2 (RN courses) requires more experience, advanced degrees (Tr. 266) and a level of expertise above that which is required to teach a Level 1 (LPN) course.  (See Section 14.03, CRITERIA FOR ASSIGNMENT, in Joint Exhibit No. 1).

Having taught at Level 2 (RN) of the nursing program, and at present only being allowed to teach at Level 1 (LPN) can be viewed as a downward movement (demotion) in teaching responsibilities, an adverse employment action.

Transfers as a form of disciplinary action are generally examined under the same analysis as demotions.  That is, arbitrators look to contract language, the purpose of the transfer, whether it is for a specific duration and whether the employee could have been subject to discipline.  If the transfer is viewed as a disciplinary measure, it will be examined under the contractual just cause provision.5

Arbitrators disagree as to whether demotion is a legitimate form of penalty.  Decisions in particular cases have turned on such issues as whether the demotion was temporary or permanent (permanent demotion sometimes having been regarded as unreasonable because it is comparable to an “indeterminate sentence”).

As a general rule, demotion is not a proper form of discipline, absent a specific contractual provision permitting such.  In this instant case, there is no specific language that permits demotion as a proper form of discipline.

Demotion must be related to an employee’s ability to perform the work on a continuing basis in terms of his/her competence and qualifications.  Discipline is properly related to infractions of rules or misconduct.6 (See Arbitrator Thornell in City of Omaha, 86 LA 142, 143 (1985).

Arbitral authority is generally uniform to the effect that non-disciplinary demotions – that is, because of inability, lack of efficiency or lack of competence – is a management right limited only by the requirement that such action not be arbitrary, capricious or discriminatory.  (See Weyehaeuser Co., LA 192, 195 (Whyte, 1968).

Which brings us full circle with regard to the circumstances involved in this case.

The College contends that its decision to not assign the Grievant to teach ADN (RN, Level 2) classes is due to a lack of trust in her work performance and her ability to teach ADN students appropriately, (Tr. 104-05).

When questioned, the Grievant admitted to having reviewed the examination questions, “yes, verbally,” with students in advance of their (the students) taking the exam, (Tr. 54, 79, 89).

To reflect on the testimony provided, the scenario would appear to be that the Grievant stood in front of the class, quite possibly with the exam (College Exhibit No. 4a) in hand, and verbally conveyed to the students the subject matter on each of the exam questions in sequential order.  The students responded by taking notes of the Grievant’s verbalizing.

A close examination of the Nursing 201 Exam (College Exhibit No. 4a) reveals that it is a multiple-choice exam, with each question either asking a question or making a statement, followed by four (4) multiple-choice answers.  The student is required to select the best answer (a, b, c or d) and enter his/her selection on a computerized grading sheet.

Keeping in mind that the parties to the dispute are in agreement, and the record will show, that the Grievant did not provide the students with the answers to the exam, some examples are in order to provide an appreciation of what transpired.

Let “SSG” stand for the student’s notes on the study guide for the upcoming exam (College Exhibit No. 1) and for purposes of differentiation here will appear in italics.

Let the designation “Exam V” (College Exhibit No. 4a) stand for the questions and answers taken from the Nursing 201 exam.

1.  SSG:  “Electrical conduction through the heart”.

Exam V:  “1.  Which of the following sequences correctly shows electrical conduction through the heart?”

a.      SA node to the AV node to the bundle of His to the Purkinje fibers.
b.      AV node to the bundle of His to the SA node to the Purkinje fibers.
c.      Purkinje fibers to the SA node to the AV node to the bundle of His.
d.      Bundle of His to the AV node to the SA node to the Purkinje fibers.”

2.      SSG:  “What is the difference between nonmodifiable and modifiable risk factors for CHF?”

Exam V:  “2.  In completing a health assessment to identify nonmodifiable risk factors for coronary artery disease, the nurse assesses:

a.      blood cholesterol.
b.      blood pressure.
c.      cigarette smoking.
d.       family history.”

3.       SSG:  “What changes in cardiovascular with elderly?”

Exam V:  “3.  In assessing the cardiovascular status of an older adult, the nurse knows that the findings will reflect the fact that:

a.       cardiovascular changes associated with aging are not modifiable.
b.      aging can lead to decreased elasticity and contractility.
c.       aging causes dysrhythmias in the majority of people.
d.      the exact effects of aging on cardiovascular status are undetermined.”

4.       SSG:  “How does pulse pressure differ?”

Exam V:  “4.  The nurse assesses pulse pressure by:

a.       subtracting the radial pulse rate from the apical pulse rate.
b.      subtracting the apical pulse rate from the radial pulse rate.
c.       subtracting the diastolic blood pressure from the systolic blood pressure.
d.      Taking bilaterial radial pulses for 1 minute and finding the difference.”

5.      SSG:  “What does a murmur signify?”

Exam V:  “5.  In ausculating heart sounds, the nurse identifies a murmur and recognizes that murmurs are frequently due to:

a.       turbulent flow of blood across a valve.
b.      fluid volume overload.
c.       pericardial surfaces rubbing together.
d.      accumulation of fluid in the alveoli.”

6.      SSG:  “What does an elevated (KCMB) mean?”

Exam V:  “6.  The nurse recognizes that a client has an elevated creatine kinase MB level and knows that this likely indicates:

a.       systolic murmur.
b.      congestive heart failure.
c.       myocardial infarction.
d.      severe dysrhythmia.

The preceding six (6) examples in italics should provide an appreciation of what the student heard and made note of as the Grievant verbalized to them, which resulted in each students’ so-called “study guide” vis-à-vis the actual wording contained on Exam V (College Exhibit No. 4a).

The italicized sentences are the students’ notes as the Grievant verbalized them.  The non-italicized sentences and multiple-choice answers are taken from Exam V.

The students were then required to work outside of class searching for the answers to their notes.

These examples of student notes (in italics) compared to the Nursing 201 Exam V appear in sequential order from one (1) to forty-six (46) on the student study guide (College Exhibit No. 1).  While the Nursing 201 Exam V (College Exhibit No. 4a) contained fifty (50) questions, the conclusion is that the students did have some knowledge of the subject matter that would confront them, and in what order, prior to taking the exam.

Keep in mind that the document (College Exhibit No. 1) found on the window sill by Witness Carolyn Campbell contained not only the student’s typewritten notes, but also the student’s typewritten answers to his/her notes.

This observation (student notes with student answers) led College administrators to surmise that possibly an exam had been stolen, or to conclude that the Grievant had provided the students with the exact wording of the questions on the exam.

As can be seen from the six (6) examples, the only correlation between the student’s notes and the exam questions was the sequential numerical order.  The students did not receive the exam questions word-for-word, as was originally alleged.  The students did not receive the exact wording of the questions on the exam.

The question becomes, does the Grievant’s action (verbally reviewing the subject matter on Nursing Exam 201 in sequential numerical order to prepare the students for an upcoming exam) violate a college policy?

While testimony (Tr. 147, 189 and 199) will show that there is no detailed or delineated college policy or procedure that provides guidelines for a teacher to adhere to or refrain from in preparing students to take an exam, College Exhibit No. 8 with regard to:  “3.  Tests and Examinations” reads in pertinent part as follows:

“3.            Tests and Examinations

a.                  The instructor shall make clear, in advance, the materials from lectures, text chapters, or other sources that will be covered on any test or examination.”  (Emphasis added.)

Now, do these “other sources” include verbally reviewing the exam (not word-for-word) with the students in advance of their taking the exam?

Considering the academic setting and the importance of the profession (NURSING) being taught, I would conclude that “other sources” does not include reviewing the exam in sequential numerical order in advance of taking the exam.

There are some situations that call for the use of common sense.  For example, you don’t need a rule that states “striking your supervisor” or “stealing” is grounds for disciplinary action.

However, given the policy expressed in “Tests and Examinations,” College Exhibit No. 8 “CHAPTER V, THE COLLEGE FACULTY, which the record will show is given to all college faculty, and for lack of a better title, I would characterize as a faculty handbook; the very worst that can be attributed to the Grievant’s action on the day in question is the Grievant is guilty of “misconduct”.

Webster’s Dictionary defines “misconduct” as “willfully improper behavior.”  Black’s Law Dictionary, Fifth Edition, defines “misconduct” as “a transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behavior, willful in character, improper or wrong behavior, delinquency, impropriety, mismanagement, offense, but not negligence or carelessness.”

The ADN program faculty, in their letter to Drs. Dukes and Cronan (College Exhibit No. 7) emphasize the belief that faculty must include ethical behavior while exercising academic freedom and are responsible for maintaining an ethical environment in the classroom.  They go on to state that the “students ability to learn is limited by giving them the exact material that will be included in the evaluation process and examinations.”  (Emphasis added.)

It is noted that the ADN program faculty does not unequivocally state that “faculty should not review the examination questions with the students in advance of the students taking the exam.”

It is also noted from the six example test questions previously illustrated, the students were not given the exact material verbatim, notwithstanding the fact that the exam questions and the student’s notes corresponded in numerical sequence.  (Emphasis added.)

All of the foregoing still does not preclude the possibility of utilizing “other sources” in the policy expressed in College Exhibit No. 8, Test and Examinations.

The College argues that “because the Grievant did not admit that she gave exam questions to the students in her PN or other courses prior to the arbitration hearing, an assumption by the College that the Grievant had done this in her other courses would have been rank speculation.”

One of the most important single presumptions invoked to review managerial action when either the contract is silent or its language is too general for interpretation is the presumption that managerial discretion must be exercised reasonably and with a degree of prudence befitting the circumstances.  It is the College’s responsibility to manage the institution and I will not substitute my judgment for the College’s.  I will, however, subject the College’s action to the test of reasonableness, and review their exercise of managerial discretion to determine whether it has been arbitrary or capricious.

Webster’s Dictionary defines “arbitrary” as “not governed by principle; depending on volition, based on one’s preference, notion or whim.”  The term “capricious” is defined as “governed or characterized by caprice; apt to change suddenly or unpredictably.”

On or about November 24, 2003, the Grievant was made aware that she was not going to teach for the rest of the quarter (Tr. 103).  For the fall quarter of 2003 (prior to the incident) the Grievant was assigned to teach two (2) Psychology 111 Sections, Nursing 201 (the RN course in the ADN program) and Practical Nursing 101 in the LPN program (Tr. 218).

At the meeting on November 24, 2003, the Grievant was removed from both the practical nursing course (101) and the ADN course (201).  The Grievant was allowed to finish teaching the two (2) Psychology 111 Sections (Tr. 218).  (Emphasis added.)

To reiterate, the Grievant was assigned to teach a Level 1 nursing course and a Level 2 nursing course.  Due to her action (reviewing the exam questions in Nursing 201, with the students prior to their taking the exam), the Grievant was removed from teaching both courses (ADN Nursing 201 and Practical Nursing 101) for the remainder of the fall quarter, 2003 (Tr. 86, 103, 218, 255).

The Grievant was removed from teaching both a Level 2 (ADN) course and a Level 1 (LPN) course, even though testimony reveals that “Because there was no proof that Grievant gave students exam questions ahead of time in her other courses, Southern State’s decision was limited to ADN courses,” (Tr. 128-129). And, even though the Grievant was removed from the Level 1 (LPN) course prior to the end of the fall quarter, she was assigned to teach Level 1 (LPN) courses in the next (winter) quarter. 

CONCLUSIONS ON THE MERITS

1.                  The College and its faculty have a long-standing mutuality of agreement with regard to the staffing of classes.  This mutuality of agreement is (1) unequivocal;  (2) clearly enunciated and acted upon; and is readily ascertainable over a reasonable period of time as a fixed and established practice accepted by both parties.6 This mutuality of agreement is implicitly understood to be a part of ARTICLE XIX, Section 19.05, MAINTENANCE OF STANDARDS.

2.                  Given the facts and circumstances involved in this case, the conduct of the Grievant (i.e., verbally reviewing examination questions with students in advance of their taking their exam) can only be characterized as misconduct.

3.                  Arbitral authority views employee misconduct as cause for an appropriate level of discipline given the level of misconduct involved and the presence of just cause.  A fundamental component of the just cause standard is the employee, in most situations, must be told what kind of conduct will lead to discipline.

4.                  The Grievant, over several years, has taught Level 2 (Associate Degree) nursing courses and Level 1 (Practical Nursing) courses.  Because of her misconduct, she was denied the opportunity to teach Level 2 (Associate Degree) nursing courses.

5.                  The College characterizes its decision to not assign the Grievant to teach ADN (Level 2) nursing courses as protected by the Management’s Rights clause, Section 1.07 and, more specifically, the right to assign and transfer faculty members under Section 14.04 and 14.09 of the College Bargaining Agreement (Joint Exhibit No. 1).

6.                  Management’s Rights, Section 1.07, does provide management with certain rights, such as:  to transfer, assign or schedule except as specifically stated otherwise in the Agreement (Joint Exhibit No. 1).

7.                  The right to transfer and assign, Section 14.09, is specific in intent and limited in scope, which precludes, given the facts and circumstances of this case, management from taking the action it has in this instant case.

8.                  Notwithstanding the absence of appropriate guidelines for reviewing material prior to an examination, given the nature of the profession (NURSING), and the academic environment, the conduct of the Grievant is not without its ramifications.

DECISION ON THE MERITS

            By refusing to allow the Grievant to finish teaching two (2) nursing courses (Level 2 nursing course 201 in the ADN program and Level 1 nursing course 101 in the LPN program), and by not assigning the Grievant to teach regularly scheduled ADN (Level 2) courses in subsequent quarters (Winter and Spring), I find that the College did violate an express and implied term of the Collective Bargaining Agreement.

REMEDY

            For the misconduct admitted to by the Grievant, a written letter of reprimand admonishing her action, would have been the appropriate response however, she has already experienced a measure of discipline by not being allowed to teach Level II (RN) nursing courses for at least two (2) quarters. (winter and spring) To now order a letter of reprimand would be a form of double jeopardy, therefore a letter of reprimand is not appropriate at this time.

            Considering the Grievant’s work experience, teaching methodology (case studies, Tr.109), seniority and long-term service to the institution, the college is directed to assign and schedule the Grievant to teach ADN (Level 2) courses,

beginning with the fall quarter 2004 in accordance with what she was teaching prior to the incident in this instant case. 

            An apology to the Dean of Health Sciences, Ms. Marsha Snyder, is not required or necessary.

Decision made in Belmont County, Ohio, on September 7, 2004.

                                                                                                                   ______________________________
                                                                                                                                Richard D. Sambuco, Arbitrator

SOURCES CITED

1 Elkouri and Elkouri, How Arbitration Works, 4th Edition, BNA, Washington, DC, P. 348.

2 Elkouri and Elkouri, How Arbitration Works, 6th Edition, BNA, Washington, DC, P. 480.

3 Zinny, Dolson & Barreca, Labor Arbitration, A Practical Guide for Advocates, BNA, Washington, DC, 1990, P. 222.

4 Zinny, Dolson & Barreca, Labor Arbitration, A Practical Guide for Advocates, BNA, Washington, DC, 1990, P. 223-224.

5Brand, Norman, Discipline and Discharge in Arbitration, ABA Section of Labor and Employment Law, BNA, Washington, DC, 1999, P. 72.

6Elkouri and Elkouri, How Arbitration Works, 5th Edition, BNA, Washington, DC, P. 632.



[1] The parties agreed in advance to keep the student’s name confidential and to not require the student to testify at the arbitration hearing.

[2] From the testimony provided at the hearing, it appears that the practice has been that all teaching faculty at the College based on their teaching experience and courses they have taught in the past, would make recommendations to the administration in advance as to what courses they would like to teach in the subsequent quarter.  Typically, the College would agree with the faculty members’ recommendations.

 

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