BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
HURLEY EDUCATION ASSOCIATION
HURLEY SCHOOL DISTRICT
Mr. Gene Degner, Executive Director, Northern Tier UniServ
P.O. Box 1400, Rhinelander, Wisconsin 54501, appearing on behalf of the Association.
Weld, Riley, Prenn & Ricci, S.C., by Attorney Kathryn J.
3624 Oakwood Hills Parkway, P. O. Box 1030, Eau Claire, Wisconsin 54702-1030,
on behalf of the District.
Hurley Education Association, hereinafter referred to as the Association, and the
School District, hereinafter referred to as the District, are parties to a collective bargaining
which provides for the final and binding arbitration of disputes arising thereunder. The
made a request, with the concurrence of the District, that the Wisconsin Employment
Commission designate a member of its staff to act as an Arbitrator to hear and decide a
over the meaning and application of the terms of the agreement. The undersigned was so
Hearing was held on April 25, 2000 in Hurley, Wisconsin. The hearing was transcribed and
parties filed post-hearing briefs and reply briefs, the last of which were exchanged on July
The grievant has been employed by the District as a teacher since 1988. In the
school year, the grievant taught grade 5 and had seventeen students in her class including two
students. The grievant at the beginning of the year observed severe deficiencies in the
ability of the LD students to do 5th grade work and so she talked with
the LD teacher, Nicki
Pieczynski, about what to do with these students. The grievant apparently felt that
not assisting her appropriately and Pieczynski apparently felt that the grievant was not
her in setting aside the times that Pieczynski could work with these students. This conflict
in the grievant contacting other teachers to discuss Pieczynski's performance and Pieczynski
contacting her supervisor, Nancy Chartier, the District's Pupil Services Director. Two other
also contacted Chartier about the conflict. On October 4, 1999, Chartier informed the
she and the Elementary Principal, Paul Peterson, wished to meet with her that afternoon.
meeting took place in Mr. Peterson's office and Chartier told the grievant that employes had
contacted her about the grievant's discussing what Pieczynski was doing and told her that this
of cancerous behavior had to cease. The grievant stated she resented that remark and
apologized for coming on so strong. The grievant expressed concerns about the LD students
trouble she had working with Pieczynski. Chartier discussed changing the grading scale and
modifying the assignments for these students. At the end of the meeting, the grievant
Chartier and Peterson for their time and the techniques to help the students.
A second meeting was held on October 12, 1999 with the grievant, Pieczynski,
Peterson present to attempt to get the grievant and Pieczynski working collaboratively. The
testified Chartier stated she had a reprimand written up. (TR-20) Chartier denied it (TR-77)
Peterson testified he did not believe it happened. (TR-109) The grievant has not been given
shown any reprimand. Chartier stated at the meeting that the behavior and
going to stop. (TR-78) On October 18, 1999, the Association filed a grievance claiming
Chartier subjected the grievant to a hostile environment. (Ex-2) The grievance was denied
processed to the instant arbitration.
The parties were unable to agree on a statement of the issue. The issue proposed by
Association is as follows:
Did the actions of the Special Ed. Director cause a hostile
which are covered by the collective bargaining agreement, and, as such, violate the rights of
grievant in her employment with the Hurley School District?
If so, what is the appropriate remedy?
The District views the issues as:
1. Did the District take disciplinary
action against the grievant?
2. Does the creation of a hostile
working environment constitute a violation of the
collective bargaining agreement?
If so, what is the appropriate remedy?
The undersigned frames the issue as
Did the District create a "hostile work
environment" which violated the rights of the grievant
under the collective bargaining agreement? If so, what is the appropriate remedy?
It is recognized that the Employer retains
rights of possession, care, control, and management
that it has by law, and that the Employer will continue to retain the rights and responsibilities
operate and manage the school system, its programs, facilities, properties, and employee
It is recognized that these express rights include, but are not limited to, the following
1. To direct all operations of
the school system: To plan, direct, and control school activities.
2. To establish and require
observance of current reasonable work rules and schedules of work,
and to establish new rules and regulations.
3. To determine the financial
policies of the District.
4. To maintain effective and/or
efficient school system operations.
5. To determine the
educational policies of the school district.
6. To determine location of the
schools and other facilities, including the right to establish new
and to relocate old facilities.
7. To determine the
supervisory and administrative organization of the school system and to
select the employees to fill those positions.
8. To determine safety, health,
and property protective measures for the welfare of students and
9. To direct and arrange the
teaching staff, including the right to hire, promote, transfer,
schedule and assign, suspend, discharge, or discipline teachers.
10. To determine the size of the
teaching staff, policies affecting the selection of teachers and
standards for judging teacher performance.
11. To create, combine, modify,
or eliminate teaching positions.
12. To determine methods of
instruction, selection of teaching aide and textbooks and materials,
class schedules, and hours of instruction.
13. To contract through CESA
for goods and services.
The Employer retains the right to exercise
these functions during the term of this Agreement,
except when such functions and rights are inconsistent or restricted by the terms of this
It is essential that such functions and rights conform with state and federal statutes, laws, and
The Employer recognizes its obligation to
bargain the impact of any changes in hours, wages,
and/or conditions of employment during the terms (sic) of this Agreement.
. . .
ARTICLE 7 CONDITIONS OF
. . .
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 arises as
quality of instruction, professional ethics, or adherence to accepted school board policy.
circumstances, the Employer may withhold the increment increase during the period of
During the period of probation the teacher will be offered recommendations for
guidance and assistance in making the necessary adjustment. At the end of the probationary
the teacher will either be rehired or the contract will not be renewed. After the initial
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
(1) neglect of duty; (2) repeated violation of rules made by the Employer; (3) conviction of a
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 application of
the provisions of this Agreement.
Grievances shall be handled as follows:
. . .
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 Employer will be represented by the Board of
Education, the Administrator, and the School Attorney. The Employer, within ten
(10) school days of said session, shall render its decision in writing to the 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 function as an arbitrator in the dispute, within thirty (30) days of the written
decision in Part E above. The 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. Procedures at this step
are provided for in Section 2, 111.70(4) of the Wisconsin Statutes. Cost of this
procedure will be divided equally between the Association and the Employer.
The Association contends that the actions of the Special Education Director caused a
environment and, as such, acted as a reprimand against the grievant. It asserts that the
she was totally disrespected by Chartier. It submits that at the October
4th or 6th
meeting, Chartier was hostile right away and the grievant told her she resented the
about herself. It insists that Chartier's comments were uncalled for. It notes a week later
told the grievant she had a reprimand written up for her, that the grievant was unprofessional
Chartier was not going to put up with it anymore and was not going to put up with 9
argues that these threats were a vile form of intimidation with no intent that they be carried
none were carried out, however Chartier did attempt to intimidate the grievant by telling her
not to speak with Board members. It claims that the above actions have caused a very
working environment for the grievant and, as such, has formed a hostile environment and
discipline without just cause.
The Association maintains that a working environment free from hostility is
the collective bargaining agreement. It cites the Management Rights clause that the District
right "to maintain effective and/or efficient school system operations." It alleges that
environment by intimidation and continuous threats does not lead to an effective or efficient
operation. It also cites the grievance procedure and argues that the behavior of Chartier
grievant is an "inequitable application" of the provision of the agreement that a teacher shall
disciplined without just cause. In summary, the Association believes the Special Ed.
in an unprofessional manner and continued to act in such a manner causing a hostile working
environment for the grievant. It asks that the grievance be sustained and the Special Ed.
ordered to cease and desist from such behavior towards the grievant.
The District contends that the case is not about disciplinary action being taken
cause. It notes that while the Association references Article 7, there can be no violation as
disciplinary action has ever occurred as the grievant has never been reprimanded. It insists
violation of Article 7 lacks merit. The District states that it has expressed performance
the grievant and discussed various areas where the grievant could improve but these fall far
discipline even if they had been reduced to writing. Inasmuch as the grievant was not
District insists it does not need to make a just cause argument.
The District observes that there is no reference to hostile working environment in the
collective bargaining agreement, therefore the grievance is not substantively arbitrable. It
the term "hostile working environment" is not expressed or implied in the collective
agreement and in order for a grievance to be valid, there must be a violation,
inequitable application of a provision in the collective bargaining agreement. It concludes
Association's allegations do not fall within the definition of a grievance and it is not
arbitrable and must be dismissed.
The District asserts that the grievant's testimony throughout the hearing was
lacks credibility. It claims that the inconsistencies are too numerous to cite and lists some
such as her not knowing the date of the first meeting or the day of the week it was held, her
that at the October 12th meeting, a reprimand had been drafted and was
ready to be put in her file, but
none was ever seen or placed in her file and Chartier testified there was no reprimand letter
Peterson testified that no reprimand was ever mentioned at the October 12th
meeting. The District
notes another area of inconsistency is the grievant's testimony regarding her education and
knowledge of incorporating IEP's into the classroom at first testifying she lacked training and
admitting she did have training and experience and was responsible for incorporating IEP
modifications. It points out that the grievant's testimony was evasive regarding the "hostile
environment" claim. The District notes the Parent-Student Handbook contains a form for it
grievant testified the form would go to the State DPI office rather than the local Association,
form indicates a copy goes to the local employe complaint officer. The District observes that
grievant did not maintain a pre-determined classroom schedule which in turn prevented
from being able to meet with student D.B. and this is another example of her ignoring the
established by the District.
The District contends that the arbitrator lacks the authority to compel the District to
the relief requested by the grievant. It submits that although the grievant has requested an
be posted, a review of case law produced no precedent for an arbitrator to order an apology
indicating perhaps that the grievance procedure is not intended to deal with hurt feelings or
personality conflicts. It insists the grievant has made much ado about nothing as Chartier's
was directed to the grievant's activities and not her personality and the apology the grievant
looking for was already received as Chartier apologized not once but three times. It
the grievant wants to force the District to accept responsibility for the grievant's egregious
It requests that the grievance be dismissed in its entirety.
The Association takes exception to the District's characterization of the statement of
in that it is attempting to excuse Pieczynski and fault the grievant for asking for services
carry out the IEP for student D.B. The Association claims the grievant first brought the
Pieczynski and then to Principal Peterson who involved the Special Education Director. It
that at the October meeting the Special Education Director took exception to someone
of her staff and lashed out at the grievant. The Association admits that the grievant was
a letter of reprimand or a suspension but claims the Special Education Director continued to
the grievant after the early October meeting when the issue should have been resolved. The
Association observes that the District asserts that Pieczynski expressed concerns about the
when the opposite was true. It alleges that
the District is blaming the grievant because she has a Special Education background
and the District
fails to take into consideration that the grievant is a normal classroom teacher and should not
blamed for requesting the services of the Special Education Instructor.
The Association maintains that this kind of covert and subtle action taken by the
caused the hostile working environment for the grievant. It seeks the grievance be sustained
Special Education Director be ordered to cease and desist such behavior towards the
The District points out three misrepresentations of the testimony in the Association's
It states that contrary to the Association's assertion that the grievant took exception to a
while she was asking about services for one of her students, the October 4, 1999 meeting
because of concerns about the grievant's failure to make lesson plan modifications and
about the grievant's lack of professionalism toward staff members. The second
the claim that Chartier has continued adverse actions against the grievant which is contrary to
grievant's own testimony that she has had no reason to meet with Chartier since October,
has had no problems with her since then. The third misrepresentation is statements attributed
Superintendent Richie stating "boys will be boys." It notes that this is contrary to Richie's
and the term never appears in the transcript.
It notes that the Association on page 2 of its brief argues that Chartier made "vile
the grievant and has attempted to intimidate her. It points out that both Principal Peterson
Chartier's testimony reveal no threats or intimidation efforts have been made. Referring to
of the Association's brief where reference to reprimands is made, Chartier, Peterson and
testified that the term "reprimand" was not used in the meeting with the grievant and no
paperwork has been generated and the grievant admitted she has never been reprimanded.
District argues that numerous meetings were held with the grievant to discuss her teaching
deficiencies and lack of professionalism.
The District reiterates that contrary to the Associations' argument, the collective
agreement does not reference, either express or implied, the term "hostile working
the Association's claim cannot be substantiated. It again points out that hostile work
concerns are handled in the District Handbook resolution process. The District argues that
Association is misconstruing the agreement in its attempt to bolster its argument but the
Rights clause is reserved to the District to exercise and the grievance procedure is not
the grievant has not been reprimanded so there cannot be a violation of the just cause
District observes that the Association never discussed "just cause" during the hearing. It
that this case is about a teacher not
liking her supervisor but rather than working to gain respect, she has filed a grievance.
It asserts that
this is an abuse of the arbitral system. The District believes the grievant's request must be
It is undisputed that the grievant was not given a written reprimand, a verbal
reprimand or any
other traditional disciplinary action such that the just cause requirements of Article 7 apply to
instant case. The Association has alleged that the District has created a "hostile work
which has acted as a reprimand against the grievant. The parties' collective bargaining
does not contain the term "hostile work environment" so there is no contractual definition of
that means or that there are any consequences attached to it. As it is not in the contract,
there is no
contractual violation. Additionally, the evidence failed to prove there was a "hostile work
The Parent-Student Handbook (Ex-10) has a provision on Sexual Harassment on
page 29 and
refers to "unwelcome verbal or physical conduct of a sexual nature" and then states as
3. Such conduct has the purpose or effect of substantially interfering
with an individual's
academic or professional performance or creating an intimidating, hostile, or offensive
employment or education environment. . . .
The Association has adopted parts of this language to arrive at the term "hostile work
Instead of applying it to sexual harassment, the Association has applied it to the
The grievant testified that in a meeting on October 4th or
6th, 1999 with Principal Peterson and
Special Education Director Chartier, the Special Education Director stated she was not going
up her type of cancer around here and the grievant stated she resented that remark and the
Education Director apologized and did not use the remark again. The Director had concerns
the grievant contacting other teachers about the LD teacher. Certainly, if the grievant had a
with the LD teacher, she should have taken it up with her supervisor and not other peers.
this conduct is appropriately described as cancerous or not makes no difference as the
objected and the supervisor apologized and that was the end of it. This simply fails to
conduct which could be described as creating a "hostile work environment." This is
when the meeting continued and was productive and the grievant thanked both supervisors.
The grievant testified that at a second meeting on or about October 12, 1999, the
Education Director stated she had a reprimand written up right now and did she want it in
It is undisputed that no reprimand was ever seen by the grievant or given to her.
Furthermore, both the Special Education Director and the Principal testified it did not
Association has the burden of proof that this occurred and, on the record, the evidence was
insufficient to establish that any discussion about a reprimand occurred.
Certainly, it is not unusual for a supervisor to warn employes that if their conduct
rules or directives that the employe may be reprimanded. A word to the wise can hardly be
be creating a "hostile work environment." The record indicated that the grievant had no
discussions with the Special Education Director since October, 1999.
It is concluded that the evidence is insufficient to establish that the Special Education
made threats that were a vile form of intimidation such that she created a 'hostile work
for the grievant. As the evidence failed to establish any "hostile work environment," the
Based on the above and foregoing, the record as a whole and the arguments of
undersigned makes the following
The District did not create a "hostile work environment" which violated the rights of
grievant under the collective bargaining agreement and therefore, the grievance is denied in
Dated at Madison, Wisconsin this 9th day of August, 2000.