BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
KENOSHA SCHOOL DISTRICT
KENOSHA EDUCATION ASSOCIATION
(Tim Somers Grievance)
Mr. Clifford B. Buelow, Davis & Kuelthau, S.C., 111 East
Kilbourn Avenue, Suite 1400,
Milwaukee, Wisconsin 53202-6613, appearing on behalf of the Employer.
Mr. Robert Baxter, Executive Director, Kenosha Education
Association, 5610 55th Street, Kenosha,
Wisconsin 53144-2295, appearing on behalf of the Association.
The Kenosha School District, hereinafter referred to as the Employer, and the
Education Association, hereinafter referred to as the Association, are parties to a collective
agreement that provides for final and binding arbitration of grievances. Pursuant to a request
arbitration the Wisconsin Employment Relations Commission appointed Edmond J.
to arbitrate a dispute over the discipline of an employee. Hearing in the matter was held in
Wisconsin on August 21, 2002. A stenographic transcript of the proceedings was prepared
received by the Arbitrator by September 25, 2002. Post hearing written arguments and reply
were received by the Arbitrator by November 13, 2002. Full consideration has been given
evidence, testimony and arguments presented in rendering this Award.
During the course of the hearing the parties where unable to agree upon the framing
issue and agreed to leave framing of the issue to the Arbitrator. The Arbitrator frames the
"Did the Employer have just cause to issue a written
reprimand to the grievant on October
"If not, what is the appropriate
H. No teacher will be disciplined without just cause.
Removal from Appendix C
assignments shall be subject to the just cause standard.
. . .
Amongst the various functions of the Employer it operates Grewenow Elementary
whereat it employs Timothy Somers, hereinafter referred to as the grievant, as a fourth grade
elementary teacher. The Employer has employed the grievant since 1974. He has never
disciplined. During his employment he has received good to excellent evaluations
for his communications skills. During the 2001-2 school year he was the Association's
Representative. The Employer also employs two (2) other fourth grade teachers at
Copeland and Virginia Thompson.
For seventeen (17) years J.D. Fountain was principle of Grewenow. Fountain retired
30, 2001. Just prior to his retirement Fountain had a conversation with the grievant. During
conversation Fountain and the grievant reminisced about their years at Grewenow. Fountain
aware that Copeland and the grievant had scheduled fourth grade class field trips that
Thompson's fourth grade class. Two (2) of the trips (to the State Capitol and Old World
dealt with an area of study all the fourth grade classes had in common, Wisconsin History.
told the grievant he wanted all fourth grade teachers to work together the next school year.
later told Thompson he had talked to the grievant and that he had told the grievant he hoped
fourth grade teachers could work together the next school year.
On July 1, 2001 Susan Valeri became the principle of Grewenow. Valeri had worked
Employer as a teacher and had been a member of the Association. On May 17, 2000 she
interim principal at the Employer's Columbus Elementary School and performed that duty
became principal at Grewenow. During the transition of principals Fountain informed Valeri
problem with the fourth grade teachers, informed her all other grade levels planned joint
and told her getting the forth grade teachers to work collaboratively should be a priority for
Shortly after Valeri assumed her duties as principal the grievant stopped in at
introduced himself. On July 26, 2001 the grievant again went to Grewenow and had another
conversation with Valeri. During this second conversation the grievant asked Valeri to
field trip for his and Copeland's fourth grade classes. Valeri questioned why Thompson's
not included. The grievant replied he did not respect Thompson and did not want to work
Valeri informed the grievant she would approve the field trip, informed the grievant she
fourth grade classes to go on field trips together, and, informed the grievant she would not
future field trips unless they were collaboratively planned. Valeri said this five (5) times and
grievant responded five times he had no interest in going on field trips with Thompson.
Shortly after the 2001-02 school year began Thompson asked Copeland how much
Copeland and the grievant would be asking from parents for field trips. Copeland would not
an answer. Thompson reported the matter to Valeri who then scheduled a meeting with all
forth grade teachers. At this meeting both Copeland and the grievant commenced criticizing
Thompson's work performance. Valeri stopped them and told them their comments were
counterproductive. She informed all three teachers she wanted them to work collaboratively
trips and the ordering of supplies. Valeri stated joint field trips were best for the students
more economical. Valeri also informed the three teachers she did not want to tell parents the
grade teachers did not get along with each other. Valeri concluded that while she did not
to like each other she expected them to collaborate on field trips. At this point the grievant
and paced around the room. Valeri believed he looked agitated. The grievant requested to
Valeri in private. Valeri requested that it wait until the meeting was over but the grievant
talk to Valeri immediately. Valeri and the grievant then went to a conference room.
Upon entering the conference room the grievant pulled a slip of paper out and
referred to it
as he spoke to Valeri. The grievant informed Valeri that if she chose to breach the
their conversation she would jeopardize or impair her credibility in the building and in the
The grievant also informed her that if she insisted on joint field trips with Thompson he
his field trips and that she would have to deal with the angry parents. If the matter got to the
Superintendent or the School Board she would have to explain it. The grievant told Valeri
that if she
continued to interfere he would file a grievance for harassment and that Copeland may also
grievance. The grievant also informed Valeri that it would seem
rather odd that during her first month at Grewenow she'd had a grievance filed against
her in the
same way a grievance had been filed against her at Columbus. The Grievant also stated that
were any repercussions against him in his day-to-day treatment or in his evaluations he would
grievance and/or a federal suit. Valeri requested the paper the grievant had referred to but
to give it to her stating if he gave it to her she could sue him (Tr. p. 86). It was introduced
hearing as Union Exhibit # 5., and states the following:
2. Cancel Field Trips
a. 39 Hostile/Angry
b. A few from room 206
c. School Board
3. Further Interference
c. 1st Month's 2 griev.
e. Federal Suit
At the conclusion of their meeting Valeri and the grievant
returned to the meeting with Thompson
and Copeland. Valeri informed the three (3) teachers she had some new information to
ended the meeting. Thereafter she wrote up the following notes:
Fourth Grade Conference Summary
Thursday, September 6, 2001
I called a conference for the three fourth grade teachers (Tim
Somers, Virginia Thompson, Ruth
Copeland) to discuss collaboration on field trips. I asked for this conference because
Thompson came to me on Tuesday very upset that the other two teachers were not going to
with her on field trips or anything else. Dave Fountain did tell me that the three teachers
a problem working together. During the summer Tim Somers came to me with a field trip
form for only two classes, we talked about adding the third class at that time. He told me he
respect Virginia Thompson and that he did not want to work with her. I asked him at that
reconsider for the next field trip.
The four of us sat down in my office and I
started the conversation by asking the teachers if they
had anything to say before I gave my thoughts and wishes on the subject of working as a
including Virginia Thompson in on plans for future field trips. Tim Somers and Ruth
had negative comments about Mrs. Thomspon; they claim that she didn't show up at
year and that she doesn't work as hard as they do. Ruth Copeland told Virginia that she
her in a negative manner on Tuesday when she was asked about how much money she was
for the field trips for the year. I asked them to stop at that point because we weren't being
productive. I told them that I wanted Virginia Thompson included in the field trips because
cost savings of going at the same time. I also said that parents would be calling if one class
going and the other two were. I asked them what my response to these parents should be. I
was unacceptable to tell them the three teachers didn't get along. I told them that they didn't
to plan together or like each other, I just wanted some collaboration on field trips and
ordering of any fourth grade materials. At that time Tim Somers stood up and said he
speak with me alone. He asked again and seemed agitated. I excused myself from the other
teachers and followed Tim into the conference room across the hall. Tim closed the door
took out a list and told me that if I ever breached the confidence of the meeting we were
having that he would ruin my reputation at Grewenow and in the district. He continued by
that if I insist that he go on field trips with Virginia Thompson that he would cancel all of
trips he had planned and refer all of the angry parents to me. He said that he refuses to work
Virginia Thompson, that I don't know how bad she is. He told me that if I push it he will
grievance against me for harassment. He continued reading off a list and told me that if
any repercussions toward him for this conversation that he would sue me for ? and file a
against me. He said if this conversation or decision not to work with Virginia Thompson
evaluations in any way that he would sue me and file a grievance. When he was done I
asked him if
I could keep his notes for reference and he said no because then I could sue him. We then
to the meeting with the other two teachers and told them I had to make some decisions
before we could continue the meeting.
Virginia Thompson insisted that if we were talking about
her that she be informed, I told her that it wasn't about her, it was about me and that I
comfortable making any decisions at that time, I needed time to think. She insisted again
and I told
her that I didn't want to react to information I was given that I needed time to think. The
left. Tim Somers thanked me for my discretion.
The meeting ended at 3:13 p.m.
On September 11, 2001 Valeri issued the following memo:
TO: Virginia Thompson, Tim
Somers, Ruth Copeland
For the benefit of the fourth grade students
at Grewenow I have decide that the fourth grade
teachers (Virginia Thompson, Tim Somers, Ruth Copeland) will collaborate on all fourth
trips. You will also collaborate on the ordering of curriculum materials and supplies for
If you have any questions please feel free to see me.
On September 13, 2001 Valeri sent the following memo to the grievant:
TO: Tim Somers
On Thursday, September 13th, you informed me
that you were not asking for any money from
students for field trips because you were canceling those field trips. When I asked you why
canceling the trips, you replied that it was because of the conversation we had on September
regarding the inclusion of Ms. Thompson and her class on these trips.
I was very concerned about your response, since this decision was
not discussed nor decided
upon by the fourth grade team. It also runs counter to my memo to you dated September
I informed you that I wanted all of the fourth grade teachers (Tim Somers, Virginia
Copeland) to collaborate on all field trips.
Since our 4th grade parents
and students are expecting to take these trips together as a class and
some of the field trips are related to the fourth grade curriculum, I am directing you to
schedule of field trips and to include the classes of Ms. Thompson and Ms. Copeland.
Please contact me if you have any questions
about this issue or my expectations of you. Thank
On October 18, 2001 the grievant was issued the following letter
October 18, 2001
Mr. Tim Somers
Grewenow Elementary School
Dear Mr. Somers:
This letter is to inform you that you are
being issued a letter of reprimand. This disciplinary
action is based on your conduct in a meeting with Principal Susan Valeri where you made
harassing and insubordinate remarks to her. As a result of this meeting, Ms. Valeri filed a
harassment complaint with the Office of Personnel.
As history, you were asked by your former
principal last year to work with the other 4th grade
teachers in a collaborative style, especially as it related to planning and field trips. You
Twice during this past summer, you met with Ms. Valeri and stated your opposition to
all of the 4th grade teachers on field trips. At the request of the teacher
who was being excluded from
the field trips, Ms. Valeri scheduled a meeting with all of the 4th grade
teachers at the start of this
school year to discuss the matter. During this meeting, you asked to speak with Ms. Valeri
and, by your own admission, you threatened to file grievances and lawsuits if Ms. Valeri
the dialogue exchanged in this private meeting (i.e. you opposition to collaboration with all
teachers and the consequences to Ms. Valeri should she direct it). Also, by your own
indicated to Ms. Valeri that if she made you plan field trips with the teacher in question,
all of your field trips and direct all of the
angry parent calls to Ms. Valeri. Finally,
although you deny it, you threatened to ruin Ms.
Valeri's reputation both at Grewenow and in the District if she made you plan field trips with
grade teachers at Grewenow.
While it is within your rights to file
grievances and lawsuits if you feel that you have not been
treated fairly as an employee, there is no protection under the law for threatening your
angry parent calls and ruining their reputation if they don't acquiesce to the way that you'd
It is hoped that this letter of reprimand will
allow you to reflect on your duties as a teacher in this
District and the importance of exercising sound and careful judgment as you work with your
colleagues and building principal. You are warned that in the event of further disregard for
duties as a teacher, you will be subject to further discipline, up to and including discharge.
a formal harassment charge has been filed, you are warned that you may not retaliate against
Valeri in any way for filing a charge against you.
You are reminded that the District's
Employee Assistance Program (652-7000) is available to
you to assist you with any personal problems that you may have that may be impacting your
to carry out your work duties.
Your teaching position is included in the
Kenosha Education Association (KEA) Bargaining Unit
covered by a collective bargaining agreement between the District and the KEA. If you
action was not based on just cause, you may appeal this decision through that agreement's
Blane McCann /s/
Jason R. Olson /s/
Dr. Blane McCann, Ph.D.
Mr. Jason R. Olson
Executive Director of K-8
Instruction Director of Personnel
Thereafter the instant grievance was filed and processed to
arbitration in accord with the parties'
The Employer contends the essential facts in the instant matter are not in dispute.
2000-01 school year Copeland and the grievant took their classes on field trips without
fourth grade class. Fountain told the grievant he hoped the fourth grade teachers
could work together in the 2001-02 school year. Fountain told Valeri about the lack of
between fourth grade teachers. The grievant was impressed with Valeri when he first met
their second meeting Valeri informed the grievant she would not approve future class trips
fourth grade classes went together, she told him this five times and five times he said he
The Employer argues that when the grievant learned Valeri had scheduled a meeting
fourth grade teachers to discuss collaboration of field trips, the grievant developed a plan to
this. He wrote a list of possible responses to coerce Valeri into changing her mind.
the grievant began the September 6th, 2001 meeting with an attack on
Thompson. When Valeri put
a stop to this and informed them she wanted the fourth grade teachers to collaborate, the
asked for a private meeting. The grievant told Valeri to keep their conversation confidential
would ruin her reputation. He further threatened several actions if she did not change her
The Employer argues the only dispute of note is whether the grievant told Valeri he
ruin her "credibility" or whether he would ruin her "reputation". In addition, the Employer
the grievant has attempted to downplay the significance of the threats he made to Valeri.
The Employer avers it is not unusual for a grievant to tell a different story than that
by his superiors. The Employer points out that arbitrators generally presume the supervisor
more credible as the accused employee has an incentive for not telling the truth whereas the
supervisor, who has nothing to gain or lose, is presumed to be telling the more credible
Employer concludes Valeri's version of variations in the testimony is more credible than the
grievant's because his testimony was self-serving, unbelievable and nothing more than an
avert disciplinary action.
The Employer also contends its actions were neither arbitrary or capricious. The
points out it was undisputed that it has retained the inherent management right to direct
curriculum, including field trips. The Employer notes the grievant did not grieve Valeri's
work collaboratively on field trips. The Employer argues the grievant's actions were a
attempt by a seasoned veteran to bully a relatively new administrator. The Employer asserts
actions were unprofessional, totally devoid of any regard for the students and without regard
obvious economies involved in joint field trips.
The Employer also urges the Arbitrator to follow the well-established arbitral
determining the penalty for employee misconduct is a function reserved to management and
arbitrator should not substitute his or her discretion for that of management.
The Employer would have the undersigned deny the grievance.
The Association contends the grievant was not insubordinate. The Association points
when the grievant left the September 6th, 2001 meeting it was adjourned
without making any decision
on collaboration thus the system that allowed field trips to be planned by the teacher and not
grade level was still the practice. The Association also points out that after the September
memo joint field trips were planned and conducted. Thus, the Association concludes, there
insubordination and asserts the instant grievance should be sustained.
The Association also contends the grievant did not threaten/harass Valeri. The
points out the grievant simply read his list to make it clear to Valari he was very certain that
not want to participate with Thompson. Further, that the grievant believed he was exercising
rights as an employee represented by the teacher's collective bargaining agreement and under
employee state law. The Association further points out the grievant did not raise his voice
private meeting with Valari. The Association concludes that the grievant did not
Valari and again asserts the instant grievance should be sustained.
The Association also points out the grievant has an impeccable record as a teacher in
Kenosha School District. The Association argues that as the grievant is a highly respected
teacher, in and out of the classroom, he does not deserve to have this blemish on his record.
Union further argues that given the grievant's record he had no need to threaten or harass
The Association would have the Arbitrator sustain the grievance and direct the
cleanse the grievance personnel file.
EMPLOYER'S REPLY BRIEF
The Employer argues that the grievant's claim he wanted a confidential meeting
wanted to discuss his reasons for not working with Thompson do not have the ring of truth.
Employer points out Copeland and the grievant began the meeting on September
6th, 2001 by
lambasting Thompson in her presence. Thus, the Employer concludes, there was nothing
Thompson to keep confidential and there was no legitimate reason for a private meeting.
Employer also points out that if the primary substance of the grievant's conversation was an
of his contractual and statutory rights he should have made such assertions in the presence of
Copeland and Thompson. The Employer avers the fact the grievant wanted to go private for
a noble cause proves the incredibility of any such motivation.
The Employer contends the real reason the grievant wanted to talk in private was
did not want any witnesses so that Valeri was caught in a "he said, she said" credibility
between a young administrator and a veteran teacher who was the Association's building
The Employer points out the grievant acknowledged during the hearing that there was
in the collective bargaining agreement which gives teachers any rights with regard to student
trips. The Employer argues that the grievant, an Association building representative, never
to find out what his rights were under the collective bargaining agreement. The Employer
out that when the grievant was directed in writing to collaborate on field trips he did so but
not file a grievance over the directive.
The Employer further argues that the grievant's threat of filing a grievance or federal
when he had no basis for it, demonstrates a threat of frivolous and vexatious litigation. The
concludes this threat was an attempt to intimidate Valeri into compliance with his wishes.
Employer also argues the grievant's assertion that it would not look good for Valeri if she
grievances filed against her early in her tenure at Grewenow, the same as at Columbus, is
courageous assertion of legal rights but a blatant threat.
The Employer further contends the grievant's threat to cancel field trips violates the
established labor law of "work and grieve" when an employee believes the collective
agreement has been violated. The Employer argues that as an Association building
grievant is held to a higher standard and is presumed to know this fundamental rule.
The Employer also argues the fact the grievant complied with Valeri's written
not erase his earlier conduct which standing alone is deserving of discipline. The Employer
out it took into consideration the grievant's work history when it determined to give the
written reprimand rather than a suspension.
ASSOCIATION'S REPLY BRIEF
The Association points out the grievant complied with Valeri's September
11th, 2001 memo
and thus there was no insubordination. The Association also argues the fact that the grievant
prepared list does not demonstrate premeditation, but avers the prepared list lends credibility
grievant that a breach of confidentiality would impair Valeri's credibility in the building and
District. The Association further argues that the fact the grievant had prepared a list does
demonstrate the grievant was attempting to coerce Valeri into changing her mind regarding
grade teachers planning and attending field trips together.
The Association concludes the grievant complied with Valeri's directive. Further,
grievant did not threaten or harass Valeri but informed her of what he believed his rights
the collective bargaining agreement as well as Wisconsin Public Employee law. The
argues that as a twenty-eight (28) year employee, there is no evidence he is capable of
the manner the Employer contends he did.
The pertinent facts herein are not in dispute. The grievant's supervisor requested that
collaborate with a fellow teacher when planning field trips. The grievant in no uncertain
refused to do so. The undersigned finds this is clearly insubordination. The Association
that the grievant complied with Valeri's September 11, 2001 memo directing the three (3)
grade teachers to collaborate on all fourth grade field trips does not negate the fact the
refused to comply with her oral request to do so on July 26th, 2001 when
Valeri informed him no
future field trips would be approved unless they were collaborated with all three (4) fourth
teachers. Nor does his compliance negate the fact that when Valeri made the same request
September 6th, 2001, the grievant again refused to do so.
The record demonstrates that when the grievant arrived at the meeting on September
he came prepared to refuse to comply with Valeri's request for collaboration. As the
pointed out, the grievant is an Association building representative and therefore should be
of the pitfalls an employee faces when an employee pursues self-help remedies. If, as he has
the grievant believed his contractual rights were being violated the appropriate action was to
with a supervisor's directive and then grieve the matter. The grievant failed to do so and
must suffer the consequences of his insubordinate actions.
However, what the undersigned finds most troublesome is the grievant's threat to take
punitive actions against the students in his charge by asserting he would cancel all his field
Valeri directed him to collaborate with Thompson. There is no dispute that field trips are an
important aspect of the educational process. In effect the grievant asserted his professional
independence was more important than the quality of education he threatened to withhold
students. Such a threat, even if not acted upon by the grievant, cannot be ignored by the
To compound this matter, the grievant's assertion he would direct any angry parent calls to
and, that this would probably come to the attention of the Superintendent and/or the members
School Board, is, in the undersigned's opinion, an attempt to intimidate Valeri into backing
from her attempts to have the three (3) teachers collaborate on field trips. The undersigned
Employer was justified in determining to discipline the grievant when he threatened job
attempted to intimidate his supervisor.
During the processing of his grievance the grievant alleged Valeri was attempting to
out as a way of establishing discipline in the building (Tr. p. 79). There is no evidence in
to support such an allegation. The record does demonstrates Valeri twice gave the grievant a
reasonable and legitimate directive; collaborate with all the fourth grade teachers when
field trips. However, the grievant informed Valeri he would not comply with this directive
informed Valeri he would cancel all his field trips if directed to work with Thompson. Thus,
undersigned finds the grievant was not only insubordinate, but threatened the supervisor with
action if she continued her directive.
The record also demonstrates that, at the commencement of the private meeting
Valeri and the grievant, the grievant requested the matter be confidential. The undersigned
problem with a request at the commencement of the meeting that what the grievant said to
remain between the two of them if the grievant had limited himself to just the request for
confidentiality. However, the grievant then went a step too far. He informed Valeri that
of confidentiality would ruin her credibility in the building and the District. This, no matter
word games the grievant may have been playing, is a direct threat by the grievant that if
the matter further she would face consequences. Such a petulant comment by the grievant,
opened their dialogue with a threat to the principal. This comment, in and of itself a veiled
would justify disciplinary action by the Employer.
The Association has pointed to the grievant's excellent work record in support of it's
that the Employer did not have just cause to discipline the grievant. However, the Employer
acknowledged it took the grievant's work record into consideration when it tempered the
it meted out, limiting the discipline to a written reprimand. Having found the grievant was
insubordinate and having found the grievant did threaten his supervisor, the undersigned
based upon the above and foregoing, and the testimony, evidence and arguments presented,
Employer had just cause to issue a written reprimand to the grievant. The grievance is
The Employer had just cause to issue a written reprimand to the grievant on October
Dated at Madison, Wisconsin, this 2nd day of December, 2002.
Bielarczyk, Jr., Arbitrator