BEFORE THE ARBITRATOR
In the Matter of the Arbitration
of a Dispute Between
HURLEY EDUCATION ASSOCIATION
HURLEY SCHOOL DISTRICT
Mr. Gene Degner, Director, Northern Tier UniServ-Central,
1901 West River Street,
P.O. Box 1400, Rhinelander, Wisconsin 54901-1400, on behalf of the Local
Mr. Robert C. Lambert, Junior/Senior High School Principal,
Hurley School District,
1S517 Rangeview Drive, Hurley, Wisconsin 54534-9702, on behalf of the District.
According to the terms of the 1995-97 collective bargaining agreement between
School District (District) and Hurley Education Association, affiliated with Northern Tier
UniServ-Central (Union), the parties requested that the Wisconsin Employment Relations
Commission designate a member of its staff to hear and resolve a dispute between them
the discharge of teacher Teresa Faoro Fleischman. The Commission designated
Gallagher to hear and resolve the dispute. A hearing was held at Hurley, Wisconsin on
1997. No stenographic transcript of the proceedings was made. The parties agreed to
their initial briefs postmarked by July 1, 1997 which the undersigned would exchange
The parties reserved the right to file reply briefs within ten working days after their receipt
initial briefs. By agreement of the parties, the record was closed on July 15, 1997, no reply
having been received.
The parties were unable to stipulate to an issue or issues to be determined in this
Union suggested the following issue for determination at the instant hearing:
Did the School District violate the collective bargaining contract
when it non-renewed Teresa
Faoro Fleischman for the 1996-97 school year? If so, what is the appropriate remedy?
The District submitted a written statement of the issues at the instant hearing which
Do the reasons brought forth by complainants as presented in the
October 6, 1995
communication from Bob Lambert to Teresa Fleischman, which resulted in a deterioration of
level of trust and respect for Ms. Fleischman among the students and staff at Hurley
School, constitute the "alleged competency based" foundation for the nonrenewal of
Ms. Fleischman's teaching contract with reference to Article 7,
Paragraph 1 of the Hurley School
District Teachers' Master Agreement? Further, is "competency" of a teacher limited to only
teaching the content and demonstrating good pedagogical skills within the confines of the
classroom, or is it extended to encompass the whole teacher as a professional modeling
appropriate and acceptable to students with young impressionable minds?
In its brief, the Union suggested the following issue for determination:
Did the Board of Education violate the rights of Teresa Faoro
Fleischman under the collective
bargaining agreement, in particular, Article 7, paragraph 1, by non-renewing
her for the 1996-97
school year alleging it was for competency reasons and not providing Teresa with guidance,
assistance, and recommendations for improvement as provided for (sic) under
In accord with off-the-record discussions the undersigned has fully considered all of
relevant evidence and argument in this case as well as the parties' suggested issues herein
finds that the issue stated by the Union in its brief shall be determined in this case.
ARTICLE 6 --- TEACHERS'
. . .
2. The Association recognizes the legal obligation of the
Employer to give to each teacher
employed by it a written notice of renewal or non-renewal of his or her contract for the
school year on or before March 15 of the school year during which said teacher holds
pursuant to Section 118.22 of the Wisconsin Statutes and amendments thereto.
. . .
ARTICLE 7 -- CONDITIONS OF
1. Initial employment will be on a two (2) year probationary
period. During this period the
teacher will be provided with guidance, assistance and recommendations for improvement.
the end of each year during the probationary period, the teacher will either be offered a
or will be informed that the contract will not be
renewed. A nonrenewal at the end of the probationary
year for alleged competence based reasons shall not be subject to the grievance procedure.
2. An established teacher (a teacher beyond the initial two (2)
year probationary period) in
the system may be placed on probation for a period not to exceed one year if a problem
to quality of instruction, professional ethics, or adherence to accepted school board policy.
these circumstances, the Employer may withhold the increment increase during the period of
probation. During the period of probation the teacher will be offered recommendations for
improvement, guidance and assistance in making the necessary adjustment. At the end of the
probationary period the teacher will either be rehired or the contract will not be renewed.
the initial probationary period no teacher shall be non-renewed except for just cause.
3. An established teacher who has not reached retirement age
shall not be disciplined or
dismissed, suspended or discharged except for cause. The following might be considered as
cause: (1) neglect of duty; (2) repeated violation of rules made by the
Employer; (3) conviction
of a felony or immorality; (4) evidence of physical or mental incapacity.
. . .
ARTICLE 8 -- GRIEVANCE
1. Definition: A "Grievance" shall mean a
complaint by a teacher in the bargaining unit, or
the bargaining unit, that there has been a violation, misinterpretation or inequitable
any of the provisions of this Agreement.
2. Procedure: Grievances shall be handles (sic) as
. . .
D. The District Administrator, the Building Principal, and the
Grievance Representative shall
meet within three (3) school days of the second filing and attempt to solve the problem. The
teacher may be heard personally or be represented by the Grievance Representative. If the
grievance cannot be resolved at this level within five (5) school days, the
Grievance Representative shall submit the grievance in writing within ten (10) school
days to the
Employer for a hearing.
E. The Employer within five (5) school days of the receipt of the
written grievance from the
District Administrator and the Grievance Representative shall meet, in executive session, and
attempt to solve the problem. The teacher may be heard personally or be represented by the
Grievance Representative and up to five (5) other representatives of his choice. The
will be represented by the Board of Education, the Administrator, and the School Attorney.
Employer, within ten (10) school days of said session, shall render its decision in writing to
teacher and the Grievance Representative.
F. If a mutually satisfactory agreement is not arrived at this
level, the Hurley Education
Association or the Employer may request the Wisconsin Employment Relations Board to
as an arbitrator in the dispute, within thirty (30) days of the written decision in Part E above.
decision of the arbitrator, if made in accordance with his jurisdiction and authority under this
agreement, will be accepted as final by the parties to the dispute and both will abide by it.
Nothing in the foregoing shall be construed to empower the arbitrator to make any decisions
amending, changing, subtracting from or adding to the provisions of the agreement.
at this step are provided for in Section 2, 111.70(4) of the Wisconsin Statutes. Cost of
procedure will be divided equally between the Association and the Employer.
Teresa Faoro Fleischman (Grievant) had been employed as a teacher at a high school
Eau Claire, Wisconsin prior to her hire by the District in late August, 1994. The
pursuant to a posting for a grade 7 - 12 Spanish teacher opening at the
District advertised at the
University of Wisconsin-Stevens Point. One week after submitting her resume and
(in late August, 1994), District Principal Robert Lambert interviewed the Grievant at his
There is some dispute regarding what was said during this interview. According to
Grievant, Mr. Lambert asked the Grievant to describe various teaching scenarios;
asked her about
books she had used in her prior teaching; and asked whether she was familiar with the
book that the District was then using. The Grievant answered Lambert's questions and stated
she was familiar with the textbook that was being used by the District. Lambert then
that he was unsure whether the District teacher who was then the incumbent of the position
which the Grievant was interviewing would be returning in the 1994-95 school year. The
Grievant stated that after the close of the interview when she and Lambert were standing in
of the gymnasium, Lambert asked her whether she had any skeletons in her closet. The
surprised by the question, asked Lambert whether he meant had she ever been arrested. The
Grievant stated that Lambert responded in the affirmative. The Grievant then told Lambert
she had never been arrested. Lambert then asked the Grievant why she had left her
High School teaching position in February, 1994. The Grievant stated that she told Lambert
she had had a personality conflict with a prior supervisor and she gave Lambert the man's
and telephone number. Lambert wrote the name and number down on a sticky note and put
the file that he was carrying. The Grievant stated this was the end of her interview.
According to Principal Lambert, Lambert stated that before he interviewed Grievant,
was aware that her prior employer had been about to non-renew her in February, 1994, when
resigned. During his interview with the Grievant, Lambert asked her about problems or
that her prior employer had had with her before she resigned from that position. Lambert
that he specifically asked the Grievant why there had been a move to non-renew her in
prior to her resignation. Lambert stated that the Grievant passed it off as a personal conflict
between herself and her supervisor. Lambert stated that as all of the other
references the Grievant had given him had stated that she was an exemplary teacher, he
recommended that the District hire her for the Spanish teacher opening. 2
When the Grievant began work for the District, she was given a corner of the teacher
lounge in which to work instead of being given a separate office. The Grievant testified that
moved a soda machine and a candy machine in the lounge and that she bought a desk and put
behind these machines to make a make-shift office. It is undisputed that the teachers in the
District regularly eat lunch in the teacher lounge and take their breaks there and that they
conduct personal conversations during the time when they are in the lounge to which the
would have been privy.
At the same time that the Grievant was hired another teacher, Miss Hoffman
hired. She too was given no office but was directed to use a table in the teacher lounge.
Miss Hoffman used a District-owned table in the teacher lounge for her work area.
also took an apartment upstairs in the house where the Grievant lived during her employment
the District. Miss Hoffman and the Grievant were never roommates during the
at the District.
On October 17, 1994, Principal Lambert observed the Grievant's performance
classroom for a 50-minute period and wrote a positive evaluation of her performance.
Lambert stated that he visited the Grievant's classroom four or five times during an
period of time but that he only once did a formal evaluation of her teaching ability. It is
undisputed that neither Lambert nor anyone else from the District did any formal evaluations
the Grievant during the 1995-96 school year. The evaluation form which Principal Lambert
on October 17, 1994, listed the length of the visit; the subject taught; the teacher
person observing; and the school in which the teacher was employed. Principal Lambert also
wrote on the form that the instructional objective of the class was to "(I)dentify numerals
verbalized in Spanish, translate phrases concerning time, and write given Arabic numbers in
The standard evaluation form used by Lambert contained five general questions,
below, and gave a date for the conference held regarding the observation, as well as leaving
spaces for the teacher and the supervisor to sign and date the form. The five questions listed
the form read as follows:
. . .
1. Did the teacher teach to the objective:
List specific / supportive evidence:
2. Was the objective at the correct level of difficulty for the
List specific / supportive evidence:
3. Was there monitoring of the learner's progress and
adjustments in the teaching?
List specific / supportive evidence:
4. Were the principles of learning being used effectively? If so,
which ones? Yes No
List specific / supportive evidence:
5. From the diagnosis, list separately
instructional skills that provided student progress toward
the objective and those that obstructed progress of the students:
. . .
It is significant that Principal Lambert made no negative comments regarding the
Grievant's teaching ability on the form he completed on October 17, 1994. Indeed,
crossed out the portion of question 5 which called for the description of "obstructed
placed the following comments in the space available:
Lesson delivery at the appropriate pace for this age group using
Lesson planned well and time efficiently used for time on task. Ms. Fleischman
classroom behavior well and addresses disruptions quickly and directly with respect for
Changes student focus timely to maintain student interest.
The position description for a Junior/Senior High School teacher at the District reads
relevant part as follows:
. . .
1. Shall possess at least a BS or BA degree
2. Shall be certified by the Wisconsin DPI
3. Proficiency in subject area being taught
Reports to: Building Principal or
Job Goal: To help students learn
subject matter and skills that will contribute to their
development as mature, able, and responsible men and women.
1. Meet and instruct assigned classes in the locations and at the
2. Plans a program of study consistent with
the appropriate K-12 curriculum guide of the
3. Establishes and maintains a classroom
environment that is conducive to learning and
appropriate to the maturity and interests of the students.
4. Prepares for assigned classes and shows
written evidence of preparation upon the request
of immediate supervisor.
5. Communicates regularly with parents to
discuss pupil progress and/or behavior.
6. Guides the learning process toward the
achievement of district curriculum goals and, in
harmony with the goals, establishes clear objectives for all lessons, units, and projects in
to communicate those objectives to students.
7. Employs a variety of instructional
techniques and instructional media, consistent with the
physical limitations of the location provided and the needs, interest, and capabilities of the
individuals or student groups involved.
8. Strives to implement by instruction and
action the district philosophy of education and
instructional goals and objectives.
9. Assesses the accomplishments of students
on a regular basis and provides progress reports
10. Recognizes student exceptional
educational needs, and cooperates with district consultants
and specialists in assessing and helping pupils solve health, attitude, and learning problems.
11. Takes all necessary and reasonable
precautions to protect students, equipment, materials,
12. Maintains accurate, complete and
correct records as required by law, district policy, and
school administrative requirements.
13. Assists the administration in
implementing policies and rules governing student life and
14. Develops rules of classroom behavior
and procedure and maintains order in a fair and just
manner consistent with district policy. Makes provisions for being available to students and
parents for education related purposes outside the instructional day such as for parent/teacher
conferences, staffing, and M-teams.
15. Strives to maintain and improve
professional competence through staff development
activities provided by the district and self-selected professional growth activities.
16. Attends staff meetings as required.
17. Serves on committees and participates in
the sponsorship of student activities to the extent
18. Performs other professional duties as
assigned by the Principal or designee.
Evaluation: Performance of the job will be
. . .
Attached to the above-quoted position description is the following separate document
reads in its entirety as follows:
EVALUATION OF STAFF
Building principals will evaluate a first year teacher to the system
at least three times during
the first school year. They will evaluate a second year teacher in the system at least two
that school year. Every effort will be made to evaluate all other teachers during a school
As a minimum, each teacher with two completed school years of experience in the district
evaluated at least one time in a three year time period. Support staff will be evaluated on an
A pre-conference is recommended before the evaluation takes
place and a post-conference is
mandatory. The post-conference should take place as soon after the evaluation visit as
with the evaluation being reviewed by both teacher and principal. The teacher's signature on
evaluation will attest to the fact that the teacher has reviewed the evaluation with the
Each teacher is invited to comment in writing on the evaluation in agreement or in rebuttal,
this act is not necessary.
The primary purpose of evaluation is to improve instruction. The
for (sic) used in the
evaluation process will be primarily narrative.
At times, the district administrator may supervise or evaluate.
The facts surrounding the Grievant's nonrenewal are as follows. Sometime in
1995 Bonnie Leino, an 8th and 9th grade English teacher at the District for the last six years
to Principal Lambert with concerns regarding the Grievant's actions. Leino told Principal
Lambert that she had heard students say things in class about the personal lives of other
that they had heard from the Grievant. In one case, Leino stated that a student came into her
classroom and stated in front of approximately 20 to 25 students that the Grievant had said
two District teachers had spent the night together. Leino stated that the student volunteered
information in her classroom. Leino stated that she felt that it is not acceptable for a
educator to make such statements to students. In another incident, Leino stated that a former
teacher, Deborah Reed, told her at lunch one day that the Grievant had announced to
she (Reed) would be leaving the District at the end of the school year. Leino stated that
told her that she (Reed) had told the Grievant this information in confidence. Later, Leino's
students volunteered that the Grievant had told them that Ms. Reed would be leaving
school at the
end of the school year. Leino stated that these incidents made her feel guarded in her speech
the Grievant, as she would not want information about herself to be made the subject of
in the school.
Leino stated that she went to Principal Lambert with her concerns regarding the
statements described above. Leino stated that she did not talk to the Grievant before she
to Mr. Lambert because these were just concerns that she had and she felt that
Lambert could talk
to the Grievant better than she could and that she did not know the Grievant well enough to
to her on these points. Leino stated that she did not go to Mr. Lambert immediately
her students recount the Grievant's statements regarding the two teachers spending the night
together, but that after she had heard the comments the Grievant had made about
Ms. Reed, she
spoke to Lambert.
According to Business Education teacher Ann Gulan (a District teacher for 28 years)
or about September 27, 1995, she was a witness to two conversations. Gulan testified
lunch the Grievant told her that Mr. Kelly (a District teacher) had made a statement to
(the District Administrator) using the "f" word. Mr. Lambert called Gulan into his
question her regarding what she had heard, as Gulan had been present in the District office
Mr. Kelly and Mr. Myran had had their conversation about which the Grievant
Ms. Gulan confirmed that she did not hear Mr. Kelly use the "f" word in the
conversation and she
confirmed to Mr. Lambert that the Grievant had told her and others at lunch that
Mr. Kelly had
in fact used the "f" word with Mr. Myran in the office.
It is unclear from the record who complained regarding the comment made by the
Grievant, however it is clear that Ms. Gulan did not volunteer the information to
Rather, Gulan was questioned by Lambert after the fact. Ms. Gulan testified that after
incident, her level of trust of the Grievant decreased and she was careful from this point
regarding what she told the Grievant. 3
On or about October 5, 1995, two students came to Mr. Lambert
to register complaints
regarding the Grievant. One of these students was Farah Swartz and the other was Heide
Salzmann. 4 Farah Swartz, a full-time college
student at the time of the instant hearing, had been
a student as a junior in the Grievant's Spanish I class. Swartz stated that she complained to
Mr. Lambert regarding a statement that was made by the Grievant to a group of
students just prior
to the Spring prom in 1994. Swartz stated that one of her friends told her that the Grievant
told a group of students that she (Swartz) said that she (Swartz) expected to be elected prom
queen. Swartz stated this was false. After the prom, Swartz stated that her mother called
District and that a meeting was held with the Grievant in which the Grievant apologized and
that she (the Grievant) had talked about Swartz to the wrong people who had gossiped about
Also, around Christmas, 1994, Swartz stated that the Grievant embarrassed her in
of the class. Swartz stated that on the day in question, she had worn a skirt and nylons and
boy in front of her was touching her nylons. She told this boy to stop because the nylons
expensive. Later, during the class, the Grievant's students went carolling at the Elementary
School and when Swartz sat down on a plastic chair the Grievant advised her to be careful
she did not run her nylons. Swartz stated that this was very embarrassing to her and that she
that the Grievant had acted inappropriately.
Swartz stated that she did not understand why the Grievant had treated her this way.
Swartz stated that while she was in the Grievant's Spanish I class, the students would
the Grievant's comments and stories because they were unbelievable; and that the Grievant's
actions were a joke among the students. Swartz stated that her level of trust and respect for
Grievant decreased due to the way the Grievant treated her as well as due to the Grievant's
unbelievable stories. As a result of the Grievant's treatment of her, Swartz refused to take
Spanish II from the Grievant.
Swartz admitted, however, that during her high school years she did complain about
another teacher at school, that she lost respect for that teacher as well and that she did not
understand why that teacher had treated her poorly, as she felt she had not deserved such
treatment. Swartz stated that with regard to all her other teachers, they had kept their
had operated at a professional level and that she had not had trouble with them. Swartz
when the Grievant made statements about her to other students, those students tended to
the Grievant because she was a teacher and in a position of authority. 6
On October 6, 1995, without having first interviewed the Grievant but after
received complaints from Ms. Leino, students Swartz and Salzmann and after having
Ms. Gulan, Principal Lambert issued the following memo dated October 6, 1995
to the Grievant:
. . .
Re: Unprofessional Conduct
Recently, a number of incidences (sic) have been brought to my
attention by members of the
teaching staff and students concerning what I would term a serious deficiency in
on your part. Specifically, reports include:
a. Making false statements about other staff members.
b. Making unacceptable comments about
other staff and students in the classroom.
c. Making embarrassing comments about
students in front of their peers.
d. Sharing professional staff teacher lounge
'gossip' with students in the classroom.
e. Fabricating stories about yourself to
impress your peers.
f. Defamation of character - students and
g. Compulsive lying.
No doubt, this is a very serious matter that is causing disruption
among the professional staff
and concern among the student body. This type of modelling is totally unacceptable as a
professional educator employed by a public school system.
I find these reports to be quite disappointing to receive. These
are issues of (sic) which your
former employer had concerns and of (sic) which we discussed when you interviewed for
position at Hurley. I recall you denying the accusations
during the interview leading me to believe that no such problems
existed. It is very distasteful
for me to discover the truth of the matter in this manner.
Undoubtedly, your unprofessional behavior will result in a
recommendation for non-renewal
of your contract.
To overcome this deficiency so that you might continue in the
education profession, your
seeking professional help would be not only advantageous but essential.
The Grievant testified that she received the above-quoted memo on October 11,
it came as a shock to her. The Grievant stated that she then asked Mr. Lambert what
to do and he stated that she should sign the bottom of the memo and date it. The Grievant
that Mr. Lambert also suggested that she seek professional help. The Grievant stated
that she later
asked Mr. Lambert what else she should do and that he suggested that she resign by
From November to March, 1995 the Grievant stated that she saw a psychologist in
as Mr. Lambert had suggested. The Grievant stated that she knew that the statements
been made about her were unfounded. The Grievant stated that when people say disturbing
about you, you wonder about yourself. And that this is why she sought professional help
a psychologist. The Grievant stated that in March, the psychologist stated that he saw no
for her to continue seeing him and that he did not know why she was coming to see him.
Grievant admitted that after March, 1995, her insurance would no longer pay for her sessions
the psychologist. The Union offered no documentary evidence from the Grievant's
psychologist regarding her visits to him.
The Grievant stated that Lambert's October 17, 1994 evaluation of her was the
evaluation she had ever received as a teacher that had no recommendations for improvement.
Grievant stated that she never received any criticism from Mr. Lambert regarding her
abilities. The Grievant stated that no one from the District ever asked her whether she had
professional help after October 11, 1995.
At the instant hearing, the Grievant never denied the incident regarding
Mr. Kelly nor the
incidents reported by Ms. Leino. In her testimony, she disputed the facts as they had
by Ms. Swartz as follows: The Grievant stated that she had been prom advisor in the
1994; that on the second night after prom, she returned home and found that there was a
on her answering machine from Farah Swartz' mother but that the telephone number to
call had been cut off. The Grievant stated that she then called the School District (to get
Ms. Swartz' number). At the time, the Grievant stated that she told Lambert there was
with the prom and he told her that she should handle it. The Grievant asked if she could use
office on Monday to set up a meeting with Farah and her mother. Mr. Lambert
Grievant stated that Mr. Lambert told her that he did not feel he needed to attend the
something like this happened every year with the prom. Mr. Lambert did not dispute
Grievant's testimony summarized above.
The Grievant stated that when Farah and her mother left the meeting with her, she
that Farah's mother was satisfied; and that Mrs. Swartz had realized that the Grievant
caught in the middle of a situation. The Grievant stated that Mrs. Swartz was
concerned that her
daughter had not been made prom queen because the ballots had been rigged; and that the
had been thrown away in a bathroom in the ski lodge where the prom had been held due to
Grievant's actions. The Grievant stated that she told Mrs. Swartz that she would go
and get the
ballots from the ski lodge but that Mrs. Swartz stated that would not be necessary.
whether the Grievant had apologized to Farah Swartz (as Farah Swartz had stated herein),
Grievant responded that she did not know what she would have apologized for. The
stated that what Farah Swartz testified to as having occurred at the meeting had not actually
Sometime in early February, 1996, Mr. Lambert interviewed long-time teacher
Pertile regarding statements that the Grievant had made. During her interview with
Ms. Pertile stated that she told Lambert that the Grievant had made comments about
students and that students would come into her class from the Grievant's class complaining
things that the Grievant had said in the classroom. Pertile characterized these things as
stories that she (the Grievant) had told to students in the classroom and that they could not
Pertile stated that there were many such stories that were reported to her by her students,
she could not remember the specifics of any of them. In addition, Pertile indicated that the
Grievant herself had told her stories, almost on a daily basis, that she believed were quite
incredible or were fabrications. Pertile could not recall the specifics of any of these stories.
On February 27, 1996 the Grievant received the following letter from District
Administrator Roger A. Myran which read in relevant part as follows:
. . .
In accordance with Wisconsin State Statute 118.22(3), "Renewal
of Teacher Contracts", and
in compliance with the HEA Master Agreement, Article 6(2), "Teacher's Contracts",
Article 7 (1), "Conditions Contract", the Hurley School District Board of Education on
February 20, 1996, authorized the administration to inform you that they issue to you
preliminary written notice of nonrewal of your current teaching contract.
The Hurley School District Board of Education will make a final
decision on contract
nonrenewal on or before March 15, 1996.
Please be aware that you have the right to a private hearing with
the Hurley Board of
Education prior to being given written notice of refusal to renew your contract. If you
file a request for a private hearing with the Board of Education, please do so in writing, with
Board of Education Chairman or with me within five (5) days after receiving this preliminary
notice of nonrenewal, so that a hearing may be arranged.
At the hearing, you have the right to be represented by Counsel
of your choice, to call
witnesses and submit evidence relevant to the subject of your nonrenewal, to cross examine
rebut any unfavorable testimony, and to receive a non-arbitrary decision with regard to your
. . .
On March 12, 1996 the Board of Education scheduled a private hearing for the
her preliminary notice of nonrenewal. The Grievant did not attend this meeting nor did
from the Union attend in her behalf. On March 25, 1996 the Northern Tier UniServ
grievance on behalf of the Grievant which read in relevant part as follows:
. . .
STATEMENT OF GRIEVANCE:
The district violated the rights of Teresa Faoro Fleischman under
the collective bargaining
agreement by voting to nonrenew her on March 12, 1996, without providing a private
which is a violation (sic) Article 6, Teacher's Contracts,
paragraph 2. Further, the district did
not afford assistance or recommendation for improvement prior to nonrenewal.
Conditions of Contract, paragraph 1, makes this grievance subject to the
grievance procedure since
the grievant was nonrenewed for reasons other than competency. The seven items listed in
October 6, 1995, memo to Ms. Fleischman from Bob Lambert do not talk about
rather to issues which address her liberty interest and contains nothing for recommendations
improvement for renewal.
That Teresa Faoro Fleischman be given a contract for the 1996-97
school year and be made
whole for all losses suffered as a result of this alleged contract violation and that
file be expunged of all materials relating to this nonrenewal for the 1996-97 school year.
. . .
Principal Lambert stated that he recommended the Grievant's non-renewal because he
believed the complaints that his teachers and students had made regarding the Grievants'
unprofessional conduct and comments. Mr. Lambert stated that his decision to
Grievant's non-renewal was based upon her lack of competency. Mr. Lambert defined
"competence" as a general fitness for a teaching position but he admitted that the Board of
Education has no definition of competence or fitness except as is reflected in the job goal
of the junior/senior high school teacher position description.
Mr. Lambert admitted that in March, 1995, he did not confront the Grievant
Bonnie Leino's complaints as Ms. Leino had requested confidentiality and had told
she would talk to the Grievant about the incidents. Mr. Lambert admitted that he used
complaints made by Ms. Leino as a basis for the issuance of the
October 6, 1995 memo.
Mr. Lambert stated that he never warned the Grievant that as her "office" was in the
lounge she should be careful what she said to others as well as what she repeated that she
there. Mr. Lambert stated that he felt to make such a cautionary statement to any
be demeaning, as teachers are professionals who should not need to be cautioned in this way.
Mr. Lambert stated that he failed to evaluate the Grievant as provided in the contract
felt he had visited her classroom several times and there was no need to criticize her teaching
ability. Finally, Mr. Lambert stated that he felt that when his staff and his students
came to him
and made complaints regarding the Grievant which were the same kind of complaints that he
heard from at least one of the Grievant's pre-hire references, this was sufficient reason to
the Grievant's veracity in general.
District Administrator Myran issued a letter dated April 22, 1996 to Union
Degner which read in relevant part as follows:
. . .
The alleged grievance of March 27, 1996, submitted by
you on behalf of Teresa Fleischman,
could not be acted upon by me since non-renewal action had already been taken by the Board
Education. The second paragraph of your cover letter expresses the point.
The private conference for Ms. Fleischman on
March 12, 1996, was unattended.
Representation at an April 15, 1996, meeting by Mr. Dan Stella and you took
Anticipated Board of Education meetings are May 7, 1996,
a special meeting, and May 21,
1996, the regular meeting. Executive sessions will be scheduled for both meeting dates in
event that you and/or HEA representation and/or Ms. Fleischman wishes (sic) to
Board of Education.
Board denied 5/7/96
. . .
POSITIONS OF THE
The District noted that complaints were received from students and teachers regarding
Grievant's conduct in and out of the classroom; that the evidence showed that the behaviors
the deterioration of trust and respect for the Grievant as a public school teacher; and this
demonstrated the Grievant's incompetence. The District also observed that the Grievant had
engaged in the same type of behavior during her former employment but that she had denied
engaging in such behavior to Mr. Lambert in her pre-hire interview, stating that her problem
been simply a personality conflict with the a former supervisor. Based upon these factors,
District suggested that the Grievant seek professional help on October 6th. However,
District observed that to provide such professional help to the Grievant was beyond its
outside its normal goals and functions. The District further noted that the preliminary notice
nonrenewal was sent to the Grievant on February 26, 1996, and that a private
conference with the
Board was set up for the Grievant and the Union on March 12, 1996, although neither
Grievant nor any Union representative attended that meeting.
The District argued that the Grievant's actions demonstrated her incompetency to
as a public school teacher, as the Grievant had failed to exhibit appropriate role-modeling for
students, parents and other teachers. The District pointed to the sworn testimony of other
as well as students which demonstrated that the Grievant's behavior had been inappropriate,
unacceptable and had resulted in reduced levels of trust and respect for the Grievant among
students and staff. The District urged that it had followed the contract as well as the
Statutes in nonrenewing the Grievant and that its nonrenewal procedures were fair and just.
District noted that the Board had followed Article 7, Paragraph 1 by refusing to
grievance on the ground that the Grievant's nonrenewal was during her probationary period
was based upon her incompetency. Therefore, the District sought denial of the grievance in
The Union asserted that the Grievant was denied her rights under Article 7,
of the collective bargaining agreement because she was not offered "guidance, assistance and
recommendations for improvement" during her two year probationary period, and as such,
Grievant has a right to expect to be fully employed at the District for the 1996-97 school
On the other hand, the Union asserted that if the District nonrenewed the Grievant for
competence, then it violated Article 8, Paragraph 2a, by inequitably applying
Article 7 to the
The Union questioned how the District could stipulate that the Grievant was an
classroom teacher, yet nonrenew her for competency reasons. The Union found it ironic that
District had evaluated the Grievant only once during her two-year probationary period and
in his evaluation, District Representative Lambert had found no areas in which the Grievant
needed improvement. Yet, approximately one year after receiving a glowing evaluation from
Lambert, on October 6, 1995, Lambert handed the Grievant a memo which essentially
no constructive criticism, told her to seek psychiatric help and indicated that she would likely
The Union asserted that the District's actions showed that the District acted arbitrarily
had failed to follow its own policies as well as its contract in nonrenewing the Grievant for
reasons stated in the October 6, 1995 memo. The Union observed that Article 7
only has meaning
if the employe is being nonrenewed for competency-based reasons. The Union implied,
that Article 7, Paragraph 1 is not applicable to probationary teacher activities
which involve a
gross violation of law "or other acts or behavior known to be wrong by reasonable people."
any event, the Union urged that the District must nonetheless establish that probationary
have engaged in willful violations of law or behavioral standards of reasonable people before
may nonrenew a probationary teacher.
The Union argued that it was the District's burden to prove that the allegations
Grievant had merit and that the District had failed to do so. In this regard, the Union noted
the District failed to prove that the Grievant had fabricated any stories, that the Grievant had
gossiped, that the Grievant had been a compulsive liar or had engaged in defamation.
Union noted, the District had relied upon mere hearsay which remained unsubstantiated by
witnesses' testimony. In the Union's view, as the District had admitted that the Grievant was
excellent teacher, this admission requires a conclusion that the District had nonrenewed the
Grievant without "substantive reason" in violation of the contract.
The District's inequitable application of Article 7 to the Grievant (in violation
of Article 8)
and its failure to properly evaluate the Grievant under Article 19 as well as its failure
with the Union pursuant to Articles 1 and 5 regarding any change in its policies
as applied to the
Grievant, all supported the Union's arguments in this case. In all of these circumstances, the
Union argued that the Grievant should be returned to her teaching position at the District
backpay and benefits. 7
The District hired the Grievant in August, 1994, before the start of the 1994-95
year, and it non-renewed the Grievant in March, 1996, during the contractually-required two
probationary period. The labor agreement at Article 7, Section 1 clearly states
that all District
teachers must serve a two year probationary period and that during this time period,
teachers ". . . will be provided with guidance, assistance and recommendations for
Article 7, Section 1 also provides that the nonrenewal of a probationary teacher
". . . at the end
of the probationary year for alleged competence based reasons shall not be subject to the
Therefore, if the reasons given by the District for its nonrenewal of the Grievant
competence based, the Grievant's nonrenewal is not subject to the grievance procedure and I
not reach the other issue 9 raised in the
grievance regarding whether the Grievant received the
guidance, assistance and recommendations for improvement required by Article 7,
Section 1. In
determining what constitutes teacher competency, I note that both the labor agreement and
District's policies are silent on this point. The only document of record that addresses the
of competency, albeit implicitly, is the position description for a Junior/Senior High School
teacher which provides that teachers must possess "proficiency in subject area being taught";
a teacher's job goal must be "(t)o help students learn subject matter and skills that will
to their development as mature, able, and responsible men and women"; and that a teacher is
responsible to establish and maintain a classroom environment that is "conducive to learning"
"(t)akes all necessary and reasonable precautions to protect students. . . ." 10 This document is
only helpful in part in that the position description admitted herein must demonstrate, to
degree, the District's concept of competency. The American Heritage Dictionary (1976)
"competent" as follows:
1) Properly or well qualified; capable.
2) Adequate for the purpose; suitable;
In my view, competence has a broader meaning than that which the Union would apply
true competence in teaching must include proper role modeling as well as excellent teaching.
The Grievant was non-renewed because she made inappropriate comments to and
teachers and students. The Grievant never denied making the statements she was alleged to
made about fellow teachers Reed and Kelly. In regard to the testimony of teachers Leino,
and Pertile, the Union failed to attack the credibility of these witnesses. I have therefore
their testimony in its entirety. Furthermore, the Grievant never denied telling former teacher
Pertile fantastic stories and she never specifically denied apologizing to Farah and
(as Farah Swartz testified) regarding the homecoming queen situation. Regarding Farah
testimony, I note that the Union failed to offer any reason why Miss Swartz's testimony
not be credited in full. 11
This case is not about the Grievant's ability to instruct students in Spanish. Rather, it
concerns the Grievant's inability to appropriately interact with students and other teachers;
that she could not be depended upon (as should be the case) to properly perform all the
a teacher, including appropriate role-modeling when teaching impressionable, young students.
The Grievant's comments and actions, complained of by faculty and students (and not denied
her) demonstrated her incompetence as a teacher.
When the Grievant's inappropriate comments and actions were reported to the
is understandable that District Principal Lambert failed to understand how a professional
could act so, and conclude that the Grievant had psychological problems. Indeed, Lambert's
recommendation that the Grievant seek professional counseling constituted a reasonable effort
give the Grievant guidance and assistance (which the District was not equiped to give her) in
circumstances. In this regard, I notre that the Grievant failed to submit any documentary
to show that she actually sought and received professional counseling from a psychologist, as
For all of the above reasons as well as the Grievant's demeanor on the witness stand,
that the Grievant failed to demonstrate full competency as a teacher, that she failed to meet
definition of competence, as set out above, by her actions toward and comments to students
faculty and therefore, that her nonrenewal was not grievable under Article 7,
Section 1. 12/
On this basis, I issue the following
The Hurley School District did not violate the collective bargaining contract when it
nonrenewed Teresa Faoro Fleischman for the 1996-97 school year for competency-based
The grievance is therefore denied and dismissed in its entirety.
Dated at Oshkosh, Wisconsin this 14th day of November, 1997.
Sharon A. Gallagher /s/
Sharon A. Gallagher, Arbitrator
1. Lambert has been a principal of the District
Junior/Senior High School since 1992. Lambert
made both the recommendation to hire the Grievant as well as the recommendation to
her that is in dispute herein.
2. The District stipulated that the Grievant was an
excellent classroom teacher and that there were
no problems with her pedagogical approach.
3. Mr. Kelly did not testify in the instant hearing.
4. Ms. Swartz testified at the instant hearing. Ms.
Salzmann did not. Mr. Lambert testified
regarding Ms. Salzmann's complaints.
5. I noted that during her testimony, Swartz wept.
6. Mr. Lambert corroborated Ms. Swartz' testimony
herein. Mr. Lambert also stated
Ms. Salzmann told him that the Grievant had told her that Farah had told the Grievant
expected to be prom queen and that Salzmann had stated that she was surprised because she
not believe her friend Farah would say such a thing. Lambert stated that when he met with
in October, 1995, both Salzmann and Swartz were upset about the prom queen incident and
they also brought up the Grievant's comment regarding Farah's nylons, which Lambert stated
7. The Union cited generally a 1979 grievance arbitration
award by Arbitrator Joseph B. Kerkman
regarding the Washburn School District (without citation). The Union argued
that in this
arbitration award, Mr. Kerkman put a probationary teacher back to work because the
failed to give that teacher proper guidance and assistance prior to the district's nonrenewal of
8. Initially the District refused to arbitrate the instant
grievance. The Union then filed a complaint
case to force the District to arbitrate and the Commission ordered arbitration hereof in Dec.
No. 28804-B (WERC, 2/97). The undersigned was designated arbitrator by the
April 10, 1997.
9. In its grievance, the Union also asserted that the District
failed to give the Grievant a private
conference pursuant to Article 6. The Union failed to pursue this claim at hearing and
argue regarding it in its brief. Therefore, I need not deal with this allegation in this award.
10. The Union cited an attachment to the position
description which states that probationary
employes should be evaluated at least three times in their first year of employment and at
twice in their second year of employment. This attachment also states that the "primary
of evaluation is to improve instruction."
11. The fact that Miss Swartz disliked another teacher
and that her parents complained about that
teacher does not require a conclusion that Miss Swartz should not be believed in this case.
12. As the grievance is not arbitrable, I need not reach
the issue whether the District violated
Article 7, Section 1, by not providing the Grievant with guidance, assistance and
recommendations for improvement during her probationary period.