National Arbitration Center
Elementary School District and Lebanon
IN ARBITRATION PROCEEDINGS
PURSUANT TO AGREEMENT BETWEEN THE PARTIES
This Arbitration arises pursuant to Agreement between LEBANON EDUCATION
ASSOCIATION ("Association"), and LEBANON ELEMENTARY SCHOOL DISTRICT
("District"), under which LUELLA E. NELSON was selected to serve as
Arbitrator and under which her Award shall be final and binding upon the
The Arbitrator issued her Opinion and Award on the merits on November 17,
1992. The Arbitrator retained
jurisdiction over the remedy and any issues arising therefrom.
Thereafter, the parties notified the Arbitrator that they were unable to
agree regarding certain aspects of the remedy.
The District filed its statement of position regarding remedy on March
12, 1993. The Association filed its
statement of position on March 18, 1993.
On behalf of the Association:
S. Olney, Esq., Bennett & Hartman, 851 SW Sixth Avenue, Suite 1600,
Portland, OR 97204-1376.
On behalf of the District:
J. Hungerford, Esq., Bischof, Hungerford & Witty, 653 S Center Street,
Oregon City, OR 97045.
In the Opinion and Award on the merits, the Arbitrator issued the
1. The District violated Article 20(B)(4) by placing a copy of a memo dated February 18, 1992, in Dale Kraus' personnel file without providing her with written notification.
The District did not violate Article 13 (Complaint Procedure) when
Principal Sherry Steele discussed her concerns about teacher Dale Kraus with the
school board during an executive session on March 9, 1992 without following the
procedural requirements of Article 13.
a. The District failed to hold a
complaint conference or otherwise process the complaints about Dale Kraus'
communication style (as referred to by Kerry Luber and Sherry Steele) pursuant
to the requirements of Article 13.
a. Violated Section 12(B)(1) by failing to conduct her evaluation openly when school district administrators and board members discussed her deficiencies during an executive session.
b. Violated Section 12(B)(3) by failing to prepare an evaluation in writing for Dale Kraus during 1991-92.
c. Did not violate Section 12(B)(7) by failing to provide a written plan of assistance for Dale Kraus.
d. Did not violate Section 12(B) by failing to follow the evaluation procedures contained in the Supervision and Evaluation Manual adopted by the school board in June of 1989.
As a remedy, the District shall take the following actions:
a. Expunge the February 18, 1992, memorandum and the record of Grievant's non-renewal from her personnel file.
b. Prepare an evaluation for the 1991-92 school year that does not rely on the subject matter of the February 18 memorandum or of teacher complaints which were not discussed with Grievant within the time limits provided in Section 13.
c. Reinstate Grievant and make her whole for any loss of earnings and other benefits occasioned by her non-renewal.
The Arbitrator retains jurisdiction over the remedy portion of this Award
and over any dispute which may arise there under.
REMEDIAL ISSUES IN DISPUTE
The remedial issue presented for decision involves the preparation of a
1991-92 evaluation consistent with Paragraph 4.b. of the Award.
The District proposes to make three changes in Grievant's Evaluation:
Remove: "[Grievant] was recommended to be placed on tenured status."
Remove: "Non-renewed at the Board meeting 3/9/92; decision was upheld in hearing before Board on 5/27/92"
Leave unchecked three boxes ("Continuation of Employment,"
"Termination of Employment," "Other") in place of checking
the "Other" box.
Association requests an order to the District to check "Continuation of
Employment" and to remove all references to the February meeting.
The explicit reference to the February meeting appears on page 5 of the
"Summative Evaluation Report:"
Standard 34: Clear and
Positive Communication--Although this area was marked Meets Standard on
her 1990-91 Summative Evaluation Report, it was noted that there was a tendency
to discuss concerns about Student Services issues with other staff members.
She was encouraged to go directly to her Principal or to the Director of
Student Services for clarification or direction.
Positive communication concerning Student Services processes once
again became an issue in February, 1992 when a meeting was convened to discuss
options for improving timelines for special education evaluation.
At that meeting, [Grievant's] communication was negative and
counterproductive to the group process. [Italics added]
Evaluation to which the "Summative Evaluation Report" is attached
refers to this paragraph as an area requiring "additional development and
POSITION OF DISTRICT
The discussion of Standard 34 is consistent with the Award.
The discussion does not rely on teacher complaints or refer to the
February 18 memorandum. It was based on Principal Sherry Steele's professional
judgment about Grievant's communication. The
Arbitrator cannot "abridge" that judgment by concluding that Steele's
concerns were unwarranted. The only
violation of the evaluation process was the communication shared with the
School Board on March 9. The
evaluation relied on documented incidents and was completed according to
Even absent the February 18 memorandum, Steele and Director of Student
Services Kerry Luber would have felt it incumbent upon them to mention
Grievant's negative communication style in her evaluation. They formed a professional opinion it was counterproductive
to the communication within the special services staff. Grievant was never promised that her behavior in the February
7 staff meeting would not be reflected on her evaluation, only that it would not
result in discipline.
Deletion of references to Standard 34 in the Evaluation and Summative
Evaluation Report would do more than make Grievant whole for the procedural
violations. It would do more than
remedy the lack of "openness" in the evaluation procedure. It would give her an evaluation which does not reflect her
supervisors' professional judgment of her performance.
POSITION OF ASSOCIATION
Had the District not violated the Agreement, Grievant's employment
would have been continued. The
evaluation should reflect that fact. The
remedy for lack of notice of the intent to rely on the February incident is to
bar the District from in any way relying on the incident in future personnel
actions. The District cannot rely
on the underlying incident addressed in the February 18 memo.
The District wants to accomplish through the back door what it cannot do
through the front door.
The Arbitrator should direct the District to delete all references to the
February meeting and mark the evaluation, "continuation of
An arbitration proceeding is not an academic exercise. Where a right has been violated, the Arbitrator must
formulate a remedy within the bounds of the contract.
That remedy must, as much as possible, put the aggrieved party where it
would have been absent the breach. Where
it cannot be determined precisely what would have happened absent a breach, the
aggrieved party must receive the "benefit of the doubt."
In the initial Opinion and Award in this case, the Arbitrator
specifically observed that the evaluation relied on materials that were not
properly processed under the Agreement. The
Arbitrator ordered the District to do what it should have done in the first
instance--prepare an evaluation consistent with the Agreement and the District's
due process obligations.
The unannounced placement of the February 18 memo in Grievant's file was
not a mere technical violation. In
conjunction with the other conduct reviewed at length in the initial Opinion and
Award, it had the substantive effect of nullifying Grievant's due process
rights. The subject of the February
18 memo is inseparable from the memo itself--and from Steele's remarks at the
School Board Executive Session.
The record does not establish that Luber would have felt constrained to
review the events reflected in the February 18 memo in preparing Grievant's
evaluation, but for the contractual breach.
He expressed a clear intention not to use these events as a basis for
adverse action. It is thus unlikely
that he would have felt it incumbent on him to mention these events in a later
The contractual breach colors Steele's decision to mention the February
events. By the time she prepared
the written evaluation, she had already suggested to the School Board that only
the time factor had prevented implementation of a plan of assistance for
Grievant. The School Board, in
turn, had relied on her verbal evaluation in voting not to renew Grievant's
contract. It would have been odd
for the written evaluation to omit any mention of a basis for the non-renewal.
Defective though the documentation of those events may have been, they
formed the basis for Steele's verbal evaluation.
Absent the earlier breach, the record does not establish that Steele
would have reviewed the February events in the written evaluation.
The District shall remove all reference to the events discussed in the
February 18 memo from Grievant's 1991-92 evaluation.
This remedy does not infringe on the authority to make professional and
educational assessments of the staff. It
simply orders the District to undo the effects of its contractual breach.
Neither party has discussed the practical effect, if any, of checking the
"Continuation of Employment" box versus leaving all three boxes
unchecked. The practical effect of
the order to reinstate was to continue Grievant's employment.
Absent a persuasive reason to the contrary, the evaluation should reflect
Grievant's actual status. Accordingly,
the District shall check the "Continuation of Employment" box.
The District shall delete all references to the events reflected in the
February 18 memorandum from Grievant's 1991-92 evaluation and shall check the
"Continuation of Employment" box.
The Arbitrator retains jurisdiction over any disputes which may arise
regarding this remedy.
DATED: April 9, 1993
LUELLA E. NELSON - Arbitrator
It cannot be determined when or why Steele decided to reverse Luber's
expressed determination to use the events underlying the February 18
memo only as an opportunity to "build bridges."
What is certain is that Grievant and the Association received no
timely notice of this change in position.
On the contrary, they left the meeting believing that they had worked
out their differences and that Grievant knew her place on the
"team." Their first
notice of Steele's renewed concern came after the School Board Executive