RUTH FOSTER ARBITRATION RULING - TIME TO SPEAK UP

In response to a statement Dr. Mike Aytes, Superintendent of Leavenworth Public Schools, made in the Friday, September 21, 2007 issue of The Leavenworth Times, Ruth Foster has requested that the entire arbitration ruling from last spring be posted for all to read.

Dr. Aytes, in describing the current conflict in contract negotiations with the teachers of Leavenworth Public Schools, stated that an arbitrator ruled in Foster’s favor based on the way the article dealing with discipline and suspension was written.

This ruling interprets the teachers’ 2006-07 negotiated agreement to mean that all forms of discipline administered upon a teacher must be for good cause.

The board’s proposal for changes to be made to the negotiated agreement negates the requirement for good cause except in the case of a suspension. The arbitration ruling, in part, states: “If the District’s position was correct, would that mean that it would be free to warn or reprimand a teacher for no cause or for bad cause? … If such an unusual or counterintuitive approach is desired by the parties, their contract language will have to clearly reflect that intent. I find myself unable to accept this result from the existing contract’s language and structure as written.”

The board’s current proposal to change the article on Suspension and Discipline in our negotiated agreement reflects exactly that – a free hand to discipline a teacher, short of suspension, without good cause.

Click on the May archives to read a summary of the ruling, and its effects for teachers in Leavenworth Public Schools.

The full ruling appears below:

In the Matter of the )
Arbitration Between )
)
LEAVENWORTH SCHOOL DISTRICT NO.453 ) Teacher File Memo Grievance:
) Grievant: Ruth Foster
and )
)
KNEA-LEAVENWORTH )

The hearing in the arbitration between the Leavenworth School District No.453 and the Leavenworth division of the Kansas National Education Association was held in Leavenworth, Kansas on January 26, 2007. The District was represented by Michael F. Delaney, Esq. The Grievant was in attendance and represented by David M. Schauner, Esq. The neutral Arbitrator was Mark Berger, Esq. The parties were given a full opportunity to present evidence, and examine and cross-examine all witnesses.
The parties agreed that there are three issues presented in this arbitration. The first is whether the Union's grievances in the instant case are arbitrable under the terms of the labor agreement between the parties. Assuming the arbitrability of the Union's grievances, the second issue is whether the District violated the labor agreement when it placed a Teacher File Memo in the Grievant's personnel file on September 5, 2006, for an incident that occurred on August 3, 2006. If the Union's grievances are arbitrable, the third issue is whether the District violated the labor agreement when it placed a Teacher File Memo in the Grievant's personnel fife on August 30, 2006, for a series of matters relating to the Grievant's behavior and her handling of her Department's budget. Neither party raised any procedural obstacle to the resolution of the instant dispute by this Arbitrator under the terms of the governing labor agreement.

FACTS
The Leavenworth Unified School District Number 453 and the Leavenworth division of the Kansas National Education Association have a collective bargaining relationship and have been parties to a serious of labor agreements over the years. This includes the current agreement which is effective for the 2006-2007 academic year. The agreement covers various professionals employed by the District including classroom teachers.
The Grievant in the instant proceeding, Ruth Foster, is a non-probationary teacher at Leavenworth High School. The instant grievance was filed by her to challenge the insertion in her personnel file of two memos that are negative in character. This action was taken by the Principal of Leavenworth High School. The grievance was processed through all stages of the contractual grievance procedure, and when the dispute could not otherwise be resolved, it was referred to the instant Arbitrator for decision pursuant to the terms of the governing labor agreement.
The relevant series of events began with an incident that occurred on August 3, 2006. The school year had not yet begun, and while the Grievant held contractual status as an employee of the District by virtue of Kansas law, there was no dispute that she was on off-duty status. However, as was her regular practice, she used the Leavenworth High School track for exercise purposes. The track is District property, but members of the community are free to use it as the Grievant had been doing.
According to the Grievant’s testimony, there had been some concern among the teachers that an excessive amount of money was being spent by the District on upkeep of athletic areas. When she saw that the athletic field was being mowed for the second , time in a week, even though the weather had been very hot and there was no grass growth that needed to be mowed, the Grievant decided to approach and talk to the individual who was about to do the mowing. According to the Grievant, the individual she spoke to, subsequently identified as Dave Stokka, the Grounds Coordinator, crossed his arms and clearly did not appreciate being told that the area did not need to be mowed. The Grievant did not think much of the interchange and turned to walk away J although she conceded at the hearing she might have referred to the unnecessary mowing as "bullshit."
Mr. Stokka, however, reported the incident to the Principal and had a different version of the events. He claimed that the Grievant addressed him inappropriately about how the mowing of the football field again was a waste of time and money. He also stated that she used profanity. This was amplified in a memo provided to the Principal at the end of the month in which he stated that the Grievant said that she thought the mowing was a "waste of time and fucking money."
The Principal pursued the matter further by having the Assistant Principal seek to obtain the Grievant's version of the events. The Grievant sought the advice of her union representative. The advice she received was that the incident was not one properly subject to District investigation. In a memo dated September 18, 2006, she stated that she would not respond in detail because she was not under contract at the time that the incident occurred.
The August 3 incident served as the trigger for further action. The District identified several other matters that related to the Grievant's non-classroom actions. One such matter related to events that occurred on August 16, 2006 following a ... meeting involving the Grievant, the Principal, and others. There was an interchange concerning the Grievant’s handling of her Department’s budget. The position of the Principal, stated at the meeting and on a number of earlier occasions, was that the Grievant had overspent her department budget. The Grievant insisted, as she had previously, that this was not the case. Nevertheless, the interchange was upsetting to her and she left the room.
Apparently she signed out, and as she was leaving the building to go to another building where her own classroom was located, she was observed by another Assistant Principal pushing open the door forcefully and causing it to hit against the wall. This happened with respect to the inner door, although it did not occur when she opened the outer door. The Assistant Principal did not make any inquiry of the Grievant, but he did go to the meeting room and told the Principal what he had observed.
The Principal directed another Assistant Principal to check on the Grievant. She proceeded to the Grievant’s classroom and saw that the Grievant was lying on the floor holding her head. She informed the Grievant that she needed to talk to her, but when the Grievant asked that it not occur at that moment, the Assistant Principal agreed and left the Grievant alone.
An additional matter identified by the District related to events that occurred at the end of' the 2005-2006 contract year. The building in which the Grievant’s classroom is located is not air-conditioned. Toward the end of the year when weather temperatures rise, the classroom can become unpleasantly warm. It was the Grievant’s practice to leave the classroom windows and door open in order to secure some cross ventilation. However, the neighboring classroom in the same building also had its door open, and the Grievant found that during weight training class the noise from that room could make it impossible for her to conduct her own class.
On a few occasions the Grievant closed the weight training class doors, but they soon were reopened. She then asked the Assistant Principal if the teacher in the weight training class could be asked to keep her doors closed during the noisy sessions. She was told that the other teacher would not be asked to close her classroom doors, but the Grievant could close her own classroom door if she desired.
At the hearing the matter was described as inappropriate and unprofessional because the Grievant did not consult with the other teacher and because she had slammed the weight training class store closed. The Grievant testified that she did not slam the door, but loose window panels in the door caused it to make noise even if the door is not slammed when being shut. She added that although she sought reconsideration of the decision, she fully complied with it and no complaint was made by the weight training class teacher either before or after the Assistant Principal became involved.
Another incident identified by the Principal involved an interchange between the Principal's secretary and the Grievant. The Grievant approached the secretary's desk needing to obtain some information or a form from her. The secretary was on the telephone with someone else and, according to the Grievant, was clearly discussing non-District business. The Grievant waited five minutes or so but could not get the secretary to respond to her. She brought the matter to the attention of the Assistant Principle, but was told that the secretary would not be directed to interrupt her telephone call. The Grievant then left, and according to the Assistant Principal, pushed the door open too vigorously, although the Grievant in her testimony denied this.
Separately identified by the Principal was what was characterized as "budget mismanagement." This was based upon the determination that the Grievant had overspent the budget for her Department, which included her own activities as well as those involving the automotive class, by approximately $500. The Grievant responded to this allegation in her testimony and in a written memo she prepared as a response to what was inserted in her file.
The points the Grievant made included that a number of items had previously been charged to other accounts, including a federal Perkins Grant, but now were being assessed against her budget. She also maintained that there were errors in the accounts that were made by someone else. She took great effort to keep within budget, but candidly told the Principal at some point that it could not be done given the new way that charges were being assigned. In the end she offered to use her own personal funds to cover the difference, but the Principal refused to accept her money, stating that the problem could not be handled in that way.

There was some interchange between the Grievant and one of the Assistant Principals about these events as they occurred. However, following the August 3 incident with the Grounds Coordinator and the Grievant's refusal to provide a response following legal advice from her Union, these matters were converted into written memos that were inserted into the Grievant's personnel file. Although originally constructed as a single memo, the August 3 incident was separated out at the request of the Union. The Grievant was given an opportunity to provide a written response, and did so, but has also pursued a grievance challenging the Principal's action as a violation of the labor agreement between the District and the Union.
RELEVANT CONTRACT PROVISIONS
Article 9
Teacher Files
All teacher permanent central office files shall be maintained under the following conditions:
All material placed in the permanent central office files of the teacher, and originating within the school district, shall be available to the teacher for inspection upon request.
Material originating within the school district and which is derogatory to a teacher's conduct, service, character. or personality shall not be placed in the teacher's file unless the teacher has had an opportunity to read the material. The teacher shall knowledge that he/she has read such material by affixing his/her signature on the actual copy to be filed. Such signature does not indicate agreement with the contents of such material.
The teacher shall have the right to answer any material filed, and his/her answer shall be attached to the derogatory material in question.
All references and information originating outside the school district on the basis of confidentiality shall not be available for inspection by the teacher.

Article 10
Grievance Procedure
1. Grievance -A grievance is a claim, in writing, by a teacher or the Association on behalf of a teacher or a group of teachers that there has been a violation of any provision of this agreement or of Board policy which affects terms and conditions of employment. A grievance is also defined as a claim by the Association that its specific rights, as provided under this agreement, have been violated.

2. General Provisions
a. A teacher may be represented at all stages of the grievance procedure by himself, or at his option, by a representative of his choice. The grievant shall be present at all stages of this procedure. Beginning with level two (2), the grievant may present witnesses and/or testimony. Beginning with level three (3), no new witnesses or testimony may be introduced unless mutually agreed to by both parties. At level three (3), the hearing will be held in open session only with mutual agreement.
***
i. Arbitration at Level 4 is limited to a violation, misapplication or misinterpretation of this agreement. The decision of the Board at Level 3 is final on a grievance involving Board policy which affects terms and conditions of employment not covered in the agreement.
4. Procedure
Level 4 -Arbitration
a. If the grievance involves a claim by the grievant that there has been a violation, misapplication or misinterpretation of the agreement, and he/she is not satisfied with the decision at Level 3; he/she may submit to the Association a request in writing, within 5 school days of the receipt of the Board's decision that the Association submit the grievance to arbitration.
The Association may, by written notice to the Board within 10 school days after receipt of the request from the aggrieved person, submit the grievance to arbitration if they feel the grievance involves a violation, misapplication, or misinterpretation of the agreement.
***
c. The arbitrator, so selected, will confer with the representatives of the Board and the Association. If the Board contends that the grievance does not involve a violation, misapplication or misinterpretation of the agreement; the arbitrator will determine whether an arbitrable issue exists.
-Neither party shall assert in the arbitration proceedings any evidence which was not submitted to the other party in prior hearings on this grievance.

Article 13
Suspension/Discipline
The suspension of a teacher from the teaching assignment shall be for good cause. The suspension shall not exceed ten (10) school days unless the alleged cause for the suspension affects the safety of students or staff or constitutes felony crime against a person.
***
In lieu of suspension or at the close of the suspension(s), the board of education has the following options:
1. Return the teacher to his/her original assignment.
2. Return the teacher to his/her original assignment with progressive discipline, if warranted. Such progressive discipline may include those set forth below:
a. Verbal warning
b. Written warning
c. Reprimand

DISCUSSION
The labor agreement between the parties contains provisions that govern the administration of discipline. Article 13 establishes a series of requirements under the heading "Suspension/Discipline." It specifically provides that teacher suspensions "shall be for good cause" and may not exceed 10 days unless involving safety or criminal activities. Also included are procedural requirements if the teacher chooses to challenge the action taken against her.
However, the District maintained that the instant proceeding does not involve action taken pursuant to Article 13. Rather, the District chose to insert material in the Grievant's file and insisted that only the provisions of Article 9 are applicable. From the perspective of the District, it is free to insert such memos in a teacher's personnel file as long as the teacher is notified and is given an opportunity to insert a written response. Beyond that, the District maintains that the arbitration procedure is not available to review any disputes concerning the insertion of derogatory memos in the personnel file of a covered teacher under the labor agreement as long as the opportunity to respond is provided.
The grievance procedure of the parties' labor agreement is contained in Article 10. It begins by stating that grievances are written claims "that there has been a violation of any provision of this agreement or of Board policy which affects terms and conditions of employment." Article 10 goes on to define the circumstances that may lead to an arbitration. Specifically, the contract defines the grounds for invoking the Level 4 Arbitration procedure in the following language:
If the grievance involves a claim by the grievant that there has been a violation, misapplication or misinterpretation of the agreement, and he/she is not satisfied with the decision at Level 3; he/she may submit to the Association a request, in writing, within five school days of the receipt of the Board's decision that the Association submit the grievance to arbitration.
Thus, the test established by the contract for determining whether a dispute may be taken to arbitration is whether it involves a claim that the labor agreement has been violated, misapplied or misinterpreted. This is reinforced by the language contained in Article 10, Section 4(c) which identifies the basis of a challenge to the arbitrability of a grievance by the Board as a contention that the grievance does not involve a violation, misapplication or misinterpretation of the labor contract.
The District's arbitrability challenge raises the question of whether the Union's grievance that Article 9 has been improperly employed by the Principal in this case constitutes a dispute that the labor agreement allocates to the arbitration process. As such, the arbitrability claim is distinct from the merits of the substantive positions taken by each side. To find a matter arbitrable is simply to say that the parties agreed that an arbitrator would resolve their disagreement rather than some other forum. And what was agreed upon in the- instant case is that claims involving a violation, misapplication or misinterpretation of the labor contract would be subject to the arbitration process.
The legal principles applicable to arbitrability challenges in labor contract arbitrations have been well settled for some time. The character of the arbitrability issue was explained in the Steelworkers Trilogy by Justice Douglas. In United Steelworkers of America v. American Manufacturing Company, he observed:

The function of the court is very limited when the parties have agreed to submit all questions of contract interpretation to the arbitrator. It is confined to ascertaining whether the party seeking arbitration is making a claim which on its face is governed by the contract. Whether the moving party is right or wrong is a question of contract interpretation for the arbitrator. In these circumstances the moving party should not be deprived of the arbitrator's judgment, when it is his judgment and all that it connotes that was bargained for.1
As applied to the instant case, the principles governing arbitrability challenges require that a determination be made as to whether the parties have agreed to have a dispute over the insertion of adverse memos in a teachers personnel file pursuant to Article 9 of the labor agreement be resolved through the arbitration process. A ruling that this matter is arbitrable, therefore, means no more than that the parties have agreed to resolve the disagreement in an arbitration forum; it does not imply any resolution of the merits of the underlying dispute.
Furthermore, the Steelworkers Trilogy created a presumption of arbitrability. As Justice Douglas observed:
An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration- clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage. 2
This presumption of arbitrability is predicated upon national labor policy which prefers mechanisms promoting the peaceful resolution of labor disputes and gives priority to methods of adjustment agreed upon by the parties. Nothing in the law of the State of Kansas suggests that it would take a different approach.
In the instant case the parties have agreed to a labor contract that incorporates an expansive arbitration clause. Any claim of a violation, misapplication or
misinterpretation of a provision of the labor contract is made subject to the arbitration process by- agreement of the parties. This represents a broad arbitration provision with no apparent limitation that would exclude District actions taken pursuant to the provisions of Article 9.
The specific grievance raised in the instant proceeding challenges the action of the Principal of Leavenworth High School in placing adverse memos in the Grievant’s personnel file. While the Article 9 duty to permit the teacher to file a written response was satisfied, the Grievant challenges the authority of the Principal to place adverse memos of the sort involved in the instant proceeding in the Grievant’s file as well as the substance contained in those memos. As a remedy the Grievant seeks their removal from her personnel tile. This clearly alleges a "violation, misapplication or misinterpretation" of the labor agreement despite the Board's assertion to the contrary. Given the generally recognized legal presumption of arbitrability applicable to labor contract disputes, and given the broad arbitration language contained in the agreement, it is my conclusion that the instant grievances challenging the specified actions taken pursuant to Article 9of the agreement are subject to the arbitration process.
The interpretation of how Article 9 applies presents a continuum of possibilities. At one extreme, the provisions can be interpreted to give the District unreviewable discretion to insert anything it wishes, right or wrong, in a teacher's personnel file subject to the teacher's right to have his or her response attached to any derogatory information the District chooses to include. It is certainly true that Article 9 makes reference to the teacher's right to have a written explanation attached to material inserted into his or her personnel tile while not identifying any other procedural remedies available to teachers. From this the District would infer that there are no other remedies and therefore the only action an Arbitrator presumably may take is to insure that responses are received by the District and properly handled.
However, the relevant provisions do not specifically state that the insertion of a written response by the teacher is the only step the teacher may take. Moreover, as stated above, the broad arbitration clause of the labor agreement makes actions taken pursuant to Article 9 subject to the arbitration process. This strongly suggests that highly derogatory memos that are in substance disciplinary reprimands and which will remain in the individual's file for possible future adverse use may be reviewed in an arbitration and that the absence of specific language establishing that procedure within Article 9 cannot be taken to mean that no such review is possible. This resuIt respects the contract interpretation principle that the provisions of the entire agreement must be read together3 and is consistent with the overall thrust of the instant labor contract which provides protection to employees in situations where adverse actions are taken or are possible.
The above analysis is certainly applicable to the memos that were placed in the Grievant's file in the instant case. She was accused of using profanity in an off-duty conversation with the District's Grounds Coordinator, mismanaging her budget while department chair and engaging in inappropriate and unprofessional behavior. The District did not propose to take immediate action to demote or suspend her based upon these allegations, but the Principal candidly admitted that such memos in an employee's file are relevant to future evaluations and could have other adverse consequences. In this Arbitrator's judgment, the allegations made against the Grievant in the memos
presented a high risk of being used to her detriment in some future District action. For all practical purposes, these were written reprimands even though they were not listed as such by the District. The arbitration clause of the contract does not permit this to be done free of the grievance and arbitration review procedures the parties agreed upon.
Accepting the position of the District would present the possibility that it could freely insert misleading or inaccurate information of a highly derogatory nature in teacher personnel files at will without having to justify its position, and use these incidents at a subsequent time to the teacher's disadvantage. The teacher would be limited to the opportunity to file a written response, and when the time came that the information was actually used, it might prove difficult or impossible to mount an effective rebuttal. The grievance and arbitration process ensures timely review in this kind of case and protects against the potential for gross unfairness to the teachers and other professionals covered by the labor agreement.
As the District accurately points out, not every document inserted into a personnel file necessarily rises to the level warranting arbitral review. Some may involve typical counseling and evaluative reports that are normally compiled as part of the teacher review process. Where such documents are created, and assuming they are not used as a means of effectively reprimanding a teacher while circumventing the requirements of the disciplinary process, the teacher's only remedy would be to prepare a response for inclusion in the file. The question in the instant proceeding is whether the memos about the Grievant prepared by the Principal in this case are properly categorized as Article 9 counseling, instructional or evaluative reports.
DISCHARGE AND DISCIPLINE IN ARBITRATION, cited by the District, describes counseling memoranda as examples of personnel file inserts that would not be considered discipline subject to other contractual restraints. These put "employees on notice of the employers expectations, but [do] not constitute adverse action.”4 But as also noted, where such memoranda are directed toward future use as a basis for subsequent discipline or even the denial of a promotion, they may be deemed to be disciplinary in character rather than truly efforts at counseling.5 The section concludes by noting that "[s]o long as the communications have no adverse impact on employees, arbitrators have not found them to be disciplinary innature.”6
Of the two memos that were placed in the Grievant's file, one involved an off-duty interchange between the Grievant and a District employee over what the Grievant felt was the unnecessary mowing of the athletic field which she viewed as a waste of District resources. The Union contends that the District had no authority over the Grievant for this incident, and I agree.
The fact that the Grievant was under contract to the District is irrelevant since that contract does not involve 24-hour per day, seven day per week supervision over every aspect of the Grievant's personal life. Nevertheless, certain limited actions while off duty may so impact legitimate District interests that they would be matters of concern properly subject to District supervision. However, the extreme behavior cited in HOW ARBITRATION WORKS illustrating this point demonstrates how limited this authority is.7 I conclude that the conduct which was the subject of the memo in question did not reach the level warranting District oversight. Consequently no memo based on this conduct may be inserted in the Grievant’s file since the specific actions of the Grievant did not sufficiently implicate legitimate interests of the District and thus the District may not exercise control over that conduct through the use of the Article 9 procedure.
The second memo, in contrast to the first, covers matters that are properly subject to District supervision. They include charges of inappropriate behavior, addressing colleagues in an unprofessional manner, and budget mismanagement. The memo was prepared in conclusory form and its substance amounted to allegations of misconduct against the Grievant. Questioning the Grievant's professionalism, stating that she mismanaged her budget responsibilities, and accusing her of inappropriate behavior seems to this Arbitrator far removed from the typical counseling, instruction or evaluation activities that supervisors engage in. The latter three procedures are all instructional or evaluative in nature and can be implemented as part of a positive system designed to insure employees meet District expectations. As such, notations documenting these types of activities are proper subjects of Article 9 for which employee responses may be limited to the filing of an explanation.
In contrast, the contents of the memos in question were highly derogatory. In this Arbitrator's judgment they cannot legitimately be called instructional, evaluative or
counseling comments. When one also considers the comments of the Principal indicating that they would be available fur future adverse use against the Grievant, it is perfectly dear that they must be treated as disciplinary reprimands.
An illustration of the difference between non-disciplinary counseling and disguised discipline is provided in Independent School District No. 701,8 cited by the District. There a High School Principal placed a letter in a school counselor's file which was subsequently challenged. Part of the letter began with the phrase "In order for you to continue your employment" with the school district. That was deemed to have made the letter disciplinary in character. With that phrase removed, the arbitrator concluded that the letter was not disciplinary. All it did was to convey to the Grievant complaints that had been received from the parents of students the Grievant counseled. The letter noted that the parental complaints indicated problems with the Grievant's counseling approach and called for further classes or workshops for the Grievant dealing with the issues raised.

In contrast, the content of the Principal's letter in the instant case made findings of misconduct. The Principal stated that the Grievant engaged in inappropriate behavior and mismanaged her budget. For all practical purposes, he also accused her of unprofessional behavior in how she dealt with her colleagues which was the way the Grievant’s conduct was characterized by District witnesses at the hearing. Very little in the memo could be called an effort at counseling. To the contrary, it was an effort to document misconduct that would be available for use in some future way that would be adverse to the Grievant. I am in agreement with the Union's view that the substance of the memo constituted a reprimand. As such, it must be treated as part of the disciplinary process and subject to applicable contractual requirements.
The structure established by the contract as a whole is one in which the grievance and arbitration processes are available where either of the parties wrongly acts on the basis of a substantive contract provision, but this does not necessarily answer the question of what standard to apply in resolving specific contract grievances. It is true that the agreement only specifically articulates a good cause standard for suspensions. From that the District argues that it does not have the obligation to prove good cause in other settings. Based upon the language of the contract and the overall structure of the agreement, I am not persuaded that the District position represents the proper interpretation of how the language of the contract covers the District's discipline of employees covered by the agreement.
The structure of Article 13 of the agreement, titled “Suspension/Discipline," begins with an expansive treatment of suspension procedures, including a requirement of good cause. An extended paragraph comprising 23 typed single space lines follows immediately. It calls for written notice, an opportunity to appeal, a hearing, and the preparation of written findings sent to the individual by certified mail. It then goes on to provide that the decision may then be appealed to the Board of Education which in turn is obligated to conduct a hearing. Written findings must be provided by the Board to the individual by certified mail.
Only after this extensive treatment of suspension procedures does the contract refer to the option of imposing lesser discipline, including a verbal warning, written warning or reprimand. The listing of these lesser forms of discipline does not come with
a specific statement that good cause is required. However, these forms of discipline are connected to the good cause required for suspensions by the statement in the contract that they maybe imposed in lieu of or after the end of the suspension. The 23 lines of text describing required procedures separates suspensions from lesser forms of discipline, but they do not serve to lessen the fact that good cause is still required. I do not believe that the somewhat unique structure of the contract's discipline procedure can be reasonably read to eliminate a good cause requirement for all discipline short of suspensions.
In its brief, the District referred to City of Lorain.9 There a succinct section of the contract listed disciplinary penalties of reduction, demotion, suspension, discharge and written reprimand, and stated that these could be appealed pursuant to the grievance procedure. In that context, the arbitrator found that a verbal reprimand, defined as a warning for a minor rule violation, was not subject to arbitration. Suffice it to say that the tight structure of the City of Lorain contract is far different from the way discipline is handled in the Leavenworth School District agreement. The separation of the non-suspension forms of discipline from the good cause requirement attached to the suspension penalty by 23 lines of text describing required procedures, and the linkage of non-suspension disciplines to the suspension option, calls for a result different from that of City of Lorain.
The District also referred to Logan-Hocking School District,10 where the
arbitrator concluded that the absence of a specific contractual just cause provision meant that none could be required. However, Arbitrator Sellman felt constrained to reach this decision on the basis of the Sixth Circuit Court of Appeals ruling in National Gypsum Go. v. United Steelworkers of America,11 where a contrary decision by an arbitrator had been reversed. However, the Sixth Circuit has recently recognized that it has been employing an erroneous review standard for arbitration awards. In Michigan Family Resources v. Service Employees Local 517M,12 it reversed National Gypsum and its four part arbitral review standard with the result that an arbitrator in the Sixth Circuit today would not feel the constraints felt by Arbitrator Sellman in his decision.
If the District’s position was correct; would that mean that it would be free to warn or reprimand a teacher for no cause or for bad cause? If that were true, arbitration would be pointless for these forms of discipline since no standards would apply. If such an unusual and counterintuitive approach is desired by the parties, their contract language will have to clearly reflect that intent. l find myself unable to accept this result from the existing contract’s language and structure as written.
Because of the District's belief that the subject matter of the instant grievance was not arbitrable and that it had no burden to establish the validity of its claims, only sketchy evidence was produced to support the substantive charges contained in the memos that are the subject of this proceeding. The matters at issue were for the most part presented in conclusory form by the Principal and no effort was made to rebut the specific points raised by the Grievant. Nevertheless, the Grievant's actions were given the highly pejorative characterization of being instances of budget mismanagement and inappropriate and unprofessional conduct. The evidence presented at the hearing did not support a file memo containing these charges.
The offense related to the closing of the weight training class doors did not establish unprofessional conduct The hearsay evidence presented by the Assistant Principal does not give a full flavor of what actually occurred. The explanation offered by the Grievant established that there was clearly some disagreement over who should close which doors and when. Given the totality of the circumstances, seeking resolution from those responsible and complying with their decision does not warrant placement of a derogatory memo in the Grievant's file.
The incident involving the Principal's secretary similarly did not warrant inclusion. as the basis for a negative reference in the Grievant’s file. According to the testimony of the Assistant Principal, the Grievant told her she heard the secretary discussing personal business while keeping her waiting for an extended period in order to ask a question or secure an official form. The Assistant Principal chose not to ask the secretary to get off the phone and the Grievant accept that decision and left.
There was testimony offered by the District concerning the occasions on which the Grievant may have opened a door too forcefully. The Grievant disputed this with respect to one of the two occasions. There was no rebuttal to her testimony that loose windows on the door caused the noise that might have been interpreted as her slamming the door. The other specification, involving the August 16 incident, was trivial at best. It was only the inner door that was opened too forcefully , but it is not clear how much excessive force may have been involved. Significantly, no excessive force was used when the outer door was opened.
As stated above, negative references were improperly placed in the Grievant's file for an off-duty interchange that was not properly subject to District supervision. The Grievant was also charged with budget mismanagement under conditions that did not support the claim. There was some dispute about the circumstances surrounding any shortfall, and after listening to the testimony of the Principal and the Grievant, I was not persuaded that any such shortfall was the result of mismanagement.
Finally, the Grievant was charged with inappropriate and unprofessional conduct without adequate evidentiary support. The District seemed displeased with the Grievant taking disputes to her supervisor, but this seems a far better alternative to getting into an argument with a co-worker. In none of these incidents, moreover, did the co-workers in question file a written complaint. Finally, the incidents related to forcefully opening doors are uncertain at best, and not supported as the basis for the highly derogatory characterization they were given. For these reasons I find the basis for the insertion of both memos in the Grievant's teacher file inadequate and as a remedy direct that they be removed in their entirety and not be used as the basis for any future District action against the Grievant.

1 363 U.S. 564, 567-568 (1960).
2 United Steelworkers of America v. Warrior and Gulf Navigation Company, 363 U.S. 574, 582-583 (1960), quoted in AT&T Technologies, Inc. v. Communication Workers, 475 U.S. 643, 650 (1986).
3 Elkouri and Elkouri, HOW ARBITRATION WORKS 462-464, and cases cited (6th ed., Rubin, ed-in-chief, 2003).
4 DISCHARGE AND DISCIPLINE IN ARBITRATION 58 (Brand, ed-in-chief, 1998).
5 Id. 59, citing Beverly Enters., 100 LA 522 (Berquist, 1993); Port of Tacoma, 99 LA 1151 (Smith, 1992); Sacramento Air Logistics Ctr., 93 LA 470 (Hoh, 1989).
6 Id. 60.
7 General Dynamics, 100 LA 180 (Francis, 1992)(sending of "disgusting and possibly libelous" letter to supervisor's wife); Wisconsin Power & Light Go., 99 LA 493 (Imes, 1992) (sending pornography to supervisor); Keebler Go., 92 LA 871 (Roumell, Jr., 1989) (off duty fight involving pushing and threatening supervisor).
8 108 LA 579 (Daly, 1997).
9122 LA 865 (Skulina, 2006).
10 122 LA 550 (Sellman, 2006).
11 793 F .2d 759 (6th Cir. 1986}.
12 475 F .3d 746 {6th Cir. 2007).


AWARD
The two Union grievances challenging the insertion of two teacher file memos in the Grievant’s personnel file are arbitrable. The memos, alleging the use of profanity by the Grievant in an August 3, 2006 incident, general inappropriate behavior and unprofessional conduct in connection with other events, and budget mismanagement, were not supported by the evidence presented. As a remedy, the District shall promptly remove the memos and all related documents from the Grievant’s personnel file and not use them for any future adverse action against the Grievant.
Jurisdiction will be retained by the instant Arbitrator for 60 days to resolve any disputes which may arise in the implementation of this award.

Mark Berger, Arbitrator
Kansas City, Missouri
April 2, 2007