BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
HURLEY EDUCATION ASSOCIATION
HURLEY SCHOOL DISTRICT
Dean, O'Dea & Pope, P.C., by Attorney Raymond J. O'Dea,
204 North Harrison Street,
Ironwood, Michigan 49938-1798, appearing on behalf of the Union.
Weld, Riley, Prenn & Ricci, S.C., by Attorney Tom
Rusboldt, 3624 Oak Hills Parkway, P.O. Box
1030, Eau Claire, WI 54702-1030, appearing on behalf of the District.
The Hurley Education Association, hereinafter referred to as the Union, and the
School District, hereinafter referred to as the District or the Employer, are parties to a
bargaining agreement, hereinafter CBA, which provides for final and binding arbitration of
disputes, which agreement was in full force and effect at all times mentioned herein. The
asked the Wisconsin Employment Relations Commission to assign an arbitrator to hear and
the Union's grievance regarding the District's decision not to renew the teaching contract of
Grievant in this matter, Nikki Pieczynski, hereinafter referred to as the Grievant. The
was appointed by the Commission as the Arbitrator and held a hearing into the matter in
Wisconsin, on July 30, 31 and August 1, 2002, at which time the parties were given
to present evidence and arguments. The hearing was transcribed. The parties filed
briefs by November 5, 2002, marking the close of the record. Based upon the
evidence and the
arguments of the parties, I issue the following decision and
To maximize the ability of the parties we serve to utilize the Internet and
software to research decisions and arbitration awards issued by the Commission and its staff,
footnote text is found in the body of this decision.
The parties were able to stipulate to the issue before the Arbitrator as follows:
Did the Employer have just cause when it non-renewed the
Grievant's employment contract
effective June 30, 2002? If not, what is the appropriate remedy?
ARTICLE 7 CONDITIONS OF
. . .
2. An established teacher (a teacher beyond the initial two (2)
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
no teacher shall be non-renewed except for just cause.
3. An established teacher who has not
retirement age shall not be disciplined or dismissed,
suspended or discharged except for cause. The following might be considered as cause: (1)
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.
. . .
. . .
The staff evaluation program shall aim at the early identification
of specific areas in which the
individual professional staff member needs help so that appropriate assistance may be
arranged for. A supervisor offering suggestions for improvement to a professional staff
that professional staff member from the responsibility to improve.
If a professional staff member
after receiving a reasonable degree of assistance fails to perform his/her assigned
a satisfactory manner, dismissal, or non-renewal procedures may be invoked. In such an
all relevant evaluation documents may be used in the proceedings.
. . .
The Grievant began her employment with the District in the Fall of 1988 as a special
education teacher. At that time, she was finishing up the requirements for her special
certification through the University of Wisconsin at Stevens Point. Her supervisor was
Chartier, the Director of Special Education and Pupil Services for the District.
During her first school year with the District, Ms. Chartier agreed to act as her
Teacher" for the purposes of observing the Grievant's teaching on a regular basis and
observations to the University. Ms. Chartier provided the University with four separate
reports dated February 4, 1999, March 3, 1999, March 29, 1999 and April 5, 1999. (Jt.
Ex. 2) Each
observation report was favorable:
2/4/99: Nikki is extremely organized and lessons
are well thought out. It is evident that she teaches with a purpose
in carrying out set objectives.
The classroom is managed
with the implementation of a structured behavioral program and various incentive
Students respond openly and
enthusiastically to the letter sounds.
Nikki is a very talented
educator motivating children to learn.
3/3/99: The rapport that
Nikki has established with the students that she works with is to be commended. Nikki
implements various questioning techniques, and teaches for knowledge based learning. She
excellent behavioral management skills and provides an environment conducive to learning.
3/29/99: Very creative lesson!
It has been a pleasure observing Nikki's teaching.
The lesson was very
organized, well thought-out and promoted collaboration.
Nikki is an excellent teacher and posses [sic] a
true knowledge of the education process.
4/5/99: Nikki continues to do
an excellent job she has built a very trusting relationship with the EEN students she
The spelling unit was well
developed and directions were presented clearly.
The students were observed
using techniques taught in other areas of study.
The Grievant was not evaluated again until February 9, 2000. (Jt. Ex. 3) This
contained some "concerns" and a recommendation for a third year of probation as well as a
of favorable observations:
Ms. Pieczynski demonstrates excellent
control of her classroom.
She uses positive reinforcement to motivate
She is very conscientious of her
responsibilities as the case manager of the Elem. LD students.
Willingness to improve instructional skills
through inservices is a concern.
Mrs. Pieczynski needs to develop strategies
necessary for increasing the reading levels of learning disabled
Her knowledge of the LEP process
continues to improve, and Mrs. Pieczynski has become more comfortable with
Mrs. Pieczynski is always dressed as a
She was very flexible this year when the
LD delivery of services was revamped from self-contained to a least [sic]
Mrs. Pieczynski is very open-minded and
willing to accept new ideas.
Mrs. Pieczynski has an excellent rapport
She demonstrates the skills necessary for
working with various faculty members.
Mrs. Pieczynski works very collaboratively [sic] with the grade
one, grade two and grade three
regular education and Title 1 teachers in an inclusive setting.
Mrs. Pieczynski does an excellent job with
organizational skills related to the (Illegible)
Mrs. Pieczynski is involved in student
activities related to her area of instruction.
Mrs. Pieczynski is a very positive member
of the Hurley K-12 team at the elementary level.
Mrs. Pieczynski has been required to
change the delivery of service to a least restrictive approach. She has done
an excellent job at the transition in meeting students needs. However, the concern for reading
strategies and the
foundation for reading development is an area of weakness that is imperative to rectification.
[sic] It is on this basis
that I am recommending a third year of probation.
Following the February, 2000 evaluation, the District
remediation plan for the Grievant (page 5,
Jt. Ex. 3) in an effort to address the concerns set forth in the evaluation. The remediation
plan stated, inter alia:
. . .
This teacher's instruction could be improved in the following
areas as noted in the Teacher Appraisal/Evaluation
Report dated 2/9/00.
. . .
Mrs. Pieczynski will attend at the expense
of the Hurley School District graduate level courses, workshops, and
inservices related to reading strategies/fundamental reading skill development three
in any combination over the
period of the 2000 2001 school year.
A re-evaluation of delivery of services will
be completed at the conclusion of workshop, inservices or graduate level
courses and throughout the 2000 2001 school year.
The Union grieved the extension of the Grievant's probationary period. The parties
grievance and, pursuant thereto, the third year of probation did not take effect.
The Grievant's next evaluation is dated December 18, 2000. (Jt. Ex. 5) This report,
previous reports, was prepared by Ms. Chartier and rated the Grievant in numerous areas on
of 0 to 4, 0 being unsatisfactory, 1 meaning "some deficiencies evident," 2 being
"exceptional" and 4 "clearly outstanding." There were 15 categories to be rated by this
eight of them, the Grievant received a rating of 1, on six a rating of 2, and on one a rating
of 4 for
a total "summary score" of 24 points. This "summary score" placed her somewhat below
on the grading scale where a score of 30 was considered to be "satisfactory." Ms. Chartier
Grievant's principal strengths as "Nikki shows average skill in remediation of reading." Her
comments on the Grievant's principal weaknesses and suggestions for improvement were:
Nikki demonstrates difficulty in getting along with peers.
Improvement in peer communication
is needed. Nikki lacks the ability to teach strategies needed for learning disabled students to
successful in the regular education setting. Improvement is also needed in the area of
to administrators suggestions and directions.
A third year probation, advancement on
the salary schedule or lane change will be proposed to the District
Administrator and Board of Education.
The record reflects that Ms. Chartier's entry regarding "advancement on the salary
schedule or lane change" actually
meant she would not recommend that the Grievant so advance. Her
recommendation for "present and future job
classification" was "Third year probation Elementary LD Teacher." Although this
evaluation was completed on
December 18, 2000, it was not signed by Ms. Chartier until February 21, 2001.
As a result of the December, 2000 evaluation, Ms. Chartier fashioned a new
for the Grievant. This plan is dated February 19, 2001, and sets forth the Grievant's areas
deficiency as follows (Jt. Ex. 6):
Broad knowledge for administering and
interpreting the Woodcock Johnson Evaluation
Explanation of deficiency: On three
separate occasions during the IEP process you displayed the lack of knowledge
for interpreting the Woodcock Johnson Evaluation for a student referred for learning
disabilities. You also attended
an initial IEP meeting without the needed sub-test for determination of a learning disability.
As indicated in §300.532
(2)(c)(1)(ii) of the Federal Regulation evaluation procedures are to be administered by trained
personnel in accordance with any instructions provided by the producer of the test. The
inability to determine the
ceiling for scoring a students test results is a clear indication that you lack the given
knowledge base need [sic] in
interpreting evaluation scores needed in determining if a child is with a learning disability.
Deficiency in developing and implementing
reading strategies to be used by students with
learning disabilities in the regular and special education setting
Explanation of deficiency: In October, I
observed you working with four (4) grade two students in the small group
setting in which you instructed one of the students to read aloud the directions to the work
sheet. The student visibly
struggled with the pronunciation of several of the key direction words. I observed you
reread the written directions
as you instructed the students to follow along with their fingers. The instructing of key
strategies used for reading
directions which should be carried over in the regular education setting were not
inability to perform dual task-negligence in meeting IEP time frames
Explanation of deficiency: When assigned a
new student or increase in contact times you have
on several occasions sighed and remarked "I don't know how I can meet all these time
inability to manage your case load and student contact time often leaves students short in
the contact time as indicated in their IEP. On several occasions the contact time has been
You have not made any attempt to ask for assistance to rectify the situation. When a peer
was assigned to you in November you questioned why you needed the peer mentor. On,
Thursday, February 15, 2001 at 3:00 PM you left a phone message on my answering
permission to go skiing with the forth grade class on the following school day Tuesday,
2001. This is a clear indication that the needs of your students are not a priority.
Displays inability to
work to a professional level with professional peers
Explanation of deficiency: In 1999
2000 you demonstrated difficulty in working with a fifth grade teacher who
questioned the required contact time agreed upon in the IEP, in meeting the educational
needs of a student in her
In 2000 2001 you have
demonstrated the inability to work collaboratively with peers in the
lower elementary level. You have demonstrated on several occasions the inability to work in
collaborative setting. This was clearly demonstrated when you did not communicate with the
members of the READS team at the Literacy Conference by taking your turn presenting the
Circle display that the team brought to present. The READS Grant is a special education
program implemented in the Hurley School District to reduce the number of referrals for
disabilities. You should have been a key player in this demonstration.
It is on the above basis that I am recommending that you be
placed on a (3) third year of
probation for the 2001 2002 school year. During the probationary period I am
you remain at your current salary step and credit increment as indicated in the Master
The above recommendation will be presented to the Hurley Board of Education on
February 28, 2001 during closed session. You will be notified of the action taken by the
Education by letter from District Administrator, Michael Richie.
. . .
To remedy the above-described deficiencies Ms. Chartier ordered the following:
Peer Mentoring LD Teacher Beginning March 2001
To develop knowledge base needed
for teaching reading and math strategies for students with learning disabilities
To develop needed peer relation
skills for working collaboratively in a school setting
Monthly meetings with the Pupil Service
Director Beginning March 2001 February 2002
To develop a knowledge base for
the IEP Procedure
To demonstrate the skills for
interpreting the evaluation materials used to identify students with a learning disability
To develop needed knowledge base
of the qualifying criteria for students referred for a possible learning disability
Peer mentoring by the School Psychologist in the area of Student
You are to demonstrate the ability
to administer the Woodcock Johnson Evaluation tool or designated evaluation tool
in the presence of the School Psychologist
You are to score the given test and
interpret the results of the exam to the School Psychologist and/or the Director of
You are to review your
responsibilities as a teacher in the area of learning disabilities as stated in Wisconsin State
Statutes and Federal Regulations.
On March 7, 2001, the Grievant was notified by the District Administrator, Michael
Richie, that the Board
of Education was considering the recommendation of the administration to place her on an
additional year of probation
for the 2001 2002 school year. On March 19, 2001, the Grievant was notified
(Jt. Ex. 7) that a hearing on the matter
had been scheduled for March 27, 2001, following an open session of the regular School
Board meeting. Just prior
to that meeting, on March 26th, a new remediation plan was developed for
the Grievant by Ms. Chartier. This plan
was presented to her on or about April 6, 2001, along with a letter advising her that the
Board of Education had voted
4 to 1 on March 27th to place her on another year of probation. The
Grievant acknowledged receipt of this notice but
did not agree with it. (Jt. Ex. 9)
On June 18, 2001, just two and one-half months following the initiation of the new
remediation plan and the implementation of the third year of probation, Ms. Chartier wrote a
to the Board of Education (Jt. Ex. 10) stating as follows:
. . .
To the Hurley Board of Education:
I am making a formal request to alter the
remediation plan that was developed for Mrs. Nikki Pieczynski in
March 2001. I have been overseeing Mrs. Pieczynski's teaching methods over the
past three months and in that time
Nikki has demonstrated great improvement in refining her skills in implementing
developmental strategies and
collaboration with peers. Although the remediation plan is not completed Mrs. Pieczynski
has confirmed that she is
willing to work toward the completion of the set objectives. I am recommending that Mrs.
Pieczynski be allowed to
move on the salary schedule and receive the credit allowance as stated in the Master
Agreement. I would also
recommend that Nikki remain on probation until the last day of the first semester of the 2001
2002 school year. This
would give adequate time to complete the remediation goals.
If I was [sic] to testify in the hearing
scheduled for July 27, 2001 regarding this issue I would be
testifying to the above information as true. It is because of Mrs. Pieczynski's dedication to
self-improvement that I am making this recommendation. Please be prepared to take action
request during the June 27, 2001 monthly Board meeting.
Director of Pupil Services
Cc: Mike Richie, District Administrator
Nikki Pieczynski, Learning Disability
The Board of Education voted 5 to 0 in support of Ms. Chartier's recommendation.
left the Hurley School District's employ at the end of the 2000 2001 school year.
The Grievant returned to her teaching job in the Fall of 2001 with the knowledge that
to serve one more semester of the extended probationary period. As the semester began, the
had a new principal, Donna Bessen; a new parttime (30%) Director of Special
Oeltjenbruns; and the school psychologist, with whom the Grievant had previously worked,
Schuler, had terminated her employment with the District.
On September 25, 2001, Bessen observed the Grievant teaching a math lessen. On
October 8th, Bessen sent
the Grievant a note entitled "First Formative Evaluation" (Jt. Ex. 12), which outlined her
observations as follows: 1/
. . .
On September 25, 2001, I had the opportunity to observe you
teaching a math lesson with J., a
fourth grade learning disabilities student.
I was unclear of the learning objectives
because there was no introduction of what was going to
be done with the student. The activities that followed included:
working with fact
a work sheet to prepare for a test
flash cards for multiplication drill and
All of the activities that I observed were
After the lesson was over, there was no
closure. The student was not given the opportunity to express what he had
learned or worked on during the session. There was no indication of what learning would
occur on the following day.
Example: Tomorrow we will be learning about patterning.
You did use modeling with J. when you had
him write the numbers just like you did. You also
gave J. plenty of positive reinforcements when he responded with a correct answer.
When I looked over your lesson plans, the
only thing that was written for math was: continue math. There were
no specifics; no goals or objectives for the lesson you did.
In future observations, among the things I would like to see are
an introduction to the lesson so the student knows
why the lesson is being taught and some type of closure so the student knows what he/she
will be learning the following
day, and specific lesson plans that address the student's areas of instruction in the learning
Since you are a probationary teacher, I look
forward to visiting your classroom on a regular basis.
. . .
The Grievant signed the above on September 9th acknowledging her
review of the information contained therein and
her right to attach a statement thereto. No such statement was attached.
1/ The identity of the child or children
involved is being concealed.
Bessen again observed the Grievant on October 30th and
31st and provided the Grievant with
a synopsis dated November 1st of her observations and complaints. (Jt. Ex.
13) This document was
entitled "Second Formative Evaluation" and said:
. . .
On October 30 and 31, 2001, I had the opportunity to observe
you working with six different
learning disabled students. As I entered your room, one student was working in a math
and the other student was working on a beading activity.
You had to make a phone call regarding one
student because you had forgotten that he was to
be in your classroom. When I asked you about it you said that sometimes you go in and get
sometimes the teacher sends him.
When B., a third grade student came in you
told him to open his math book to page 76. You
read the directions on the page to the student. You used appropriate questioning techniques
student about what he was supposed to be doing. You told the student to work on the
the page. When the student finished, you asked him if he had checked his work.
You had two students working on different
math activities and you were sitting directly across
the table from the students. You were writing upside down when you were correcting the
showing the students what they had done wrong. This was confusing to the students as well
you because you stated that you lost track and were confused.
You gave your students positive reinforcement for all correct
responses and for the effort they
While working with a student on a place
value activity, you told the student to use the place value
materials, but there were none on the table.
You took out a reading basal told [sic] the
student that he was going to read a story. The student
had a piece of paper and you told the student to do just one line at a time. You gave the
positive reinforcement and told him he did a very good job. The student asked to use a
like he had used before and you told the student that you had already gone through the colors
times and he didn't like the colors.
While working with a student on a
spelling/writing activity, you had the student try and pick out
words from a workbook page, which was too difficult for the student. This is a student who
to have visual cues or sentence frames.
You worked with two third grade students
for reading. Each student was completing a workbook
page. You read the directions to each student and had them complete the pages. One
working with compound words. After completing the workbook page, you had the student
list of other compound words. You missed a teaching opportunity during that time because
student had words listed that were not compound words and you didn't address that. You
collected her list with no feedback about the words.
The other student was coloring a picture
and you asked him to write a couple of sentences
regarding the picture. After the student completed the activity, you corrected all the spelling
the student made but never discussed that with the student. There was another teachable
that was missed.
As we discussed earlier, in future
observations, among the things I would like to see are an
introduction to the lesson so the students know what is going to be taught (not just reading
directions to the student), sitting next to the student so that it is easier for the student to see
work, some type of closure so the student knows what he/she will be learning the following
lesson plans that address the concept that will be taught, and communication with the
teachers so that they know and you know what concepts are being taught and the strategies
with each student.
Since you are a probationary teacher, I look
forward to visiting your class again in the very near
. . .
Before the Grievant responded to this "Formative Evaluation," she received yet
from Bessen dated November 12, 2001, referring to a conversation the two of them had had
November 5th. (Jt. Ex. 16) This note said:
. . .
On Monday, November 5, 2001 I met with you in your classroom
and we discussed the issue of
communication with the staff regarding students, progress, and programming.
The directive at that meeting was that you
and I would sit down together with each individual
elementary teacher that had a learning disabled student to discuss how we can improve
communication, thereby improving the instruction that our student receive.
I was informed of the meeting that you had
scheduled for today on Friday, November 9, 2001.
I was unsure of what the meeting was about so I attended.
At the meeting you discussed
communication problems and you felt that the form you handed
out, "Daily Regular Education Progress Report" would be the best approach right now. You
the regular education teachers to fill it out daily for their students.
After the meeting ended, I asked you if you
thought this meeting had taken the place of the
meeting that we discussed on November 5, 2001 and you said yes. I told you that we would
to meet with teachers as I had directed you to do on the 5th.
You then told me you would not talk with
me anymore without Chris Kelly being present.
Cc: Stu Waller, District Administrator
Patricia Oeltjenbruns, Special Education Director
The Grievant did not respond to this note in writing. She did sign the November
on the following day, November 13th and, as before, acknowledged her
review of the information with
Bessen and her right to attach a statement to it. This time though, the Grievant did respond
Bessen's observations. On November 14th she sent Bessen a memo (Jt. Ex.
15) stating as follows:
. . .
Re: Incorrect comments on evaluation received November 13,
I am writing this in response to my most recent evaluation
because some points were made in it
that were incorrect.
I did not forget B. He had
been coming to my room independently prior to that day
so I called to check on him.
As per my lesson plans and
the objective of the activity I did no [sic] want to
discourage the child's train of thought and change the focus of the lesson. The child is
one that has difficulty attending and I prepare lessons for him that focus on only concept
at a time.
After I recapped with the
student last year's attempts to use the transparencies I told
him I'd be happy to get them out and try them again this year. I was taught in one of my
methods classes that the different colors were used to make text stand out for children
therefore making it easier to read. This is especially true of dyslexic children which this
particular student is diagnosed as having.
CC: Stu Waller, District Administrator
Trish Oeltjenbruns, Special Education
On the very next day, November 15th, the Grievant received
note from Bessen relating
back to her observations on October 30th and containing comments which
had not been addressed in
the "Formative Evaluation" covering her observations of October 30th and
31st. This note (Jt. Ex. 14)
. . .
On Tuesday, October 30, 2001 I observed you in your
classroom with 3 students. At 1:30
p.m., after those students left your room, I remained in your classroom. I waited for you to
with the two students that were scheduled from 1:30 p.m. 2:00 p.m. You did not
return to your
classroom so I looked at your lesson plan book and there was nothing indicated there for
students so I proceeded to the fourth grade classroom where the students were enrolled.
Upon entering the classroom, you were standing in the back of
the room while the classroom
teacher and students were engaged in a discussion regarding the
newspaper. As I approached you, I questioned you about why
you had not returned to your
room with the two learning disabled students. You told me that you were now doing
these students instead of providing the direct instruction during that time slot. I thought that
great idea and told you so. I asked how long you had been doing that and you told me that
been doing it for a week.
I asked you what your participation in the activity of that day was
and you did not know. I was
concerned with that so I asked you if you and the classroom teacher had discussed this
your participation in it and you said no. Collaboration is the key to successful inclusion so I
continued the discussion with you only to find out that the inclusion had only occurred one
previously instead of one week. The classroom teacher was unaware of any changes in the
moving from direct instruction to inclusion. As a matter of fact, when I discussed this with
informed me that she never really knew what was going to happen on any given day.
were there with students, sometimes you were not, and sometimes the students were not even
serviced during the time slot at all. There was no consistency in planning or communication.
This document was unsigned by Bessen and did not contain an area for the Grievant to
acknowledging her receipt thereof or her right to attach a response.
The next memo from Bessen was dated November 16, 2001, and was directed to the
Grievant, the District Administrator and Chris Kelly, the bargaining unit president (Jt. Ex.
refers to a meeting held on November 14, 2001. It reads as follows:
As previously discussed on November 5, 200 [sic] the issue of
communication with staff
regarding students, progress, and programming came up again. The directive at that time
we would set up a meeting with each individual elementary teacher that had a learning
student to work on communication issues.
As per the request on November 14, 2001
for a plan to help Ms. Pieczynski in the area of
communication some suggestions I have include the following:
Individual meetings with teachers
that have learning disabled students and the elementary principal
to communicate and coordinate the appropriate teaching strategies that work with each
individual student so that there is consistency and carry over in the regular education
classroom and the learning disabilities classroom. (i.e. learning disabilities teacher will share
the specific strategies and techniques she uses with the students so that the student is
successful in all academic areas)
Working with teachers on any new forms that you devise
and implement so they are all aware of the
procedure for completing them
A specific planning time with
teachers to coordinate and collaborate instruction for learning disabled
students (at your meeting on November 12, 2001 some teachers suggested that you meet with
them at their team meetings)
Ongoing communication of student
progress or lack of progress with classroom teachers
In the area of teaching techniques some
suggestions I have include the following:
Learn and use the strategies that
work with each individual student
Teach the specific skill that you are
working on to the student incorporating the learning style of the
student as well as the strategy and then, if you need to, use a workbook or worksheet to
practice or reinforce the skill;
Explore multi-sensory instruction
with each individual student
Continue to develop you knowledge
base for teaching reading and math strategies for students with
The record next contains a half page of typewritten notes prepared by Bessen which
a meeting which took place on November 29, 2001. (Jt. Ex. 17A) This document is
On Thursday, November 29, 2001, Nikki Pieczynski, Pat
Hochstein, and I met after school to
discuss Z. and M. During the meeting, Pat and Nikki discussed some strategies that work
two students in the l/d setting and in the regular education setting. Pat had a few questions
form that Nikki has asked the teachers to fill out. I had some concerns about the text book
has been using with Z. since it is not the same series that he is using in the regular education
classroom and the skills are not sequential. Nikki will be checking into using the first grade
of the Houghton Mifflin series that we currently use so that skills can be built in the special
classroom that will help Z. perform in the regular education room.
As far as with M., Nikki said that she is
taking it slow. She is not sure what M. is capable of yet.
She will be working on facts through 18.
Pat and Nikki will be meeting on Friday
mornings for planning time. Pat will share what her
lesson plans are for the coming week so that Nikki will be able to plan activities and lessons
go along with the classroom curriculum.
I asked Nikki about scheduling the meeting that she told the
teachers she would have in one week
to discuss the forms she had developed. She told me that she has to talk to Chris Kelly first.
unsure as to why she needs to talk to Chris since she told the teachers on the night of the
they would have a meeting in one week to discuss how the forms were working and if they
questions. To my knowledge, Nikki has not approached any of the teachers to discuss the
I also asked Nikki if she had sent a letter
home to the parents regarding the new form that was
being sent home (the form the classroom teachers have been asked to fill out) and she said
told me that she would have one going home on Friday, November 30th.
On January 8, 2002, the Grievant received formal notification from the District
Waller, that the Board of Education was considering "the Administration's recommendation"
contract not be renewed. The notice was dated January 7, 2002. It advised her that,
Wisconsin Statutes, she had the right to "file a request with the Board within five (5) days of
receipt of this notice for a conference with the Board relative to the subject of nonrenewal of
On January 15, 2002, the Grievant sent a note to Bessen advising of her willingness
workshops or conferences which might aid her understanding and interpretation of the
Johnson III test. She asks for Bessen's help in locating such workshops or conferences: "If
any information on workshops pertaining to these areas, ideas, or suggestions please let me
This note referred to a conversation the two had had in the Grievant's classroom on the
On January 22, 2002, Bessen sent another lengthy memo to the Grievant referencing
"Interpretation Results of the Woodcock Johnson III." This memo was Bessen's response to
above referenced meeting of January 14th. It read as follows:
I was in attendance at an IEP for a fourth grade student on
Monday, January 14, 2002, along
with the parent, Mr. G., Mrs. Czarnecki, and you.
It became rather apparent that you had
difficulty interpreting the results of the testing instrument
(Woodcock Johnson III) that you had administered. When questioned about if the student
for special education services by the results of the test, you were unable to answer the
openly stated that you were confused about the test results. You did not know why there
for both age equivalency and grade equivalency.
You also came to the meeting totally unprepared. You did not
have any of the test results with
you or any type of written report or formal observation. When I asked you about why you
have a written report or formal observation, you stated that you no longer had to do that.
further stated that all you had to do was to answer the last six questions on the test print out
Back in October, when you asked me if you
could have additional time for testing with the
Woodcock Johnson III, I asked you if you were comfortable with administering and
new assessment. You stated to me that you felt very comfortable with the Woodcock
You continued to state that you had taken Val Hellem's WJIII, gone through it, and felt that
were familiar with it. If you had told me at that time that you did not feel comfortable
or interpreting the assessment, you could have received training on it.
In your correspondence to me dated January
15, 2002 you asked me if I had any information on
workshops pertaining to the areas of administering and assessment of the Woodcock Johnson
That type of information does not normally come across my desk. It would be up to you to
initiative and then inform me as to the dates and location of training that you would be
I must advise you that your lack of
knowledge in the interpretation of the Woodcock Johnson
evaluation tool is another reason for the Administration's recommendation that your contract
renewed. Your remediation plan of February 19, 2001 noted a deficiency in the
interpretation of the Woodcock Johnson evaluation tool. Apparently the deficiency has not
. . .
The next day, January 23, 2002, Bessen prepared what she called the "Third
Evaluation." This document was received by the Grievant on January 28, 2002, and said:
On January 15, 2002, I had the opportunity to observe you
teaching math with three students in
your classroom. As I entered your room, a student was working on basic math skills of
another student was working on estimation and exact answers.
You did ask the second student what he had
done the previous day and he said that he had
learned about perimeter. The student had difficulty pronouncing the word but after
he did seem to know the concept. You read the
directions to the student on pages 172 and 173 and had the student
begin working on the
problems in the book. This student had difficulty rounding numbers to the nearest ten to
if he should have an exact answer or if he could estimate. You verbally told the student the
rounding to the nearest ten but you did not work with the student on making sure that he
the rule or doing any reteaching activities that would help the student to fully understand the
of rounding so that he could successfully understand the lesson for the day.
The other student was using an appropriate
technique of counting on. You told the student that
if she could finish the next few problems in the book she could have some free time. The
difficulty staying on task. You told the student that she could have seven minutes of free
then you would do the flash cards with her.
A third student came into your room and
you told her what had occurred the previous day in
math. This student had to sit and wait for about five minutes while you finished up with
two students. You then grabbed a packet of stapled Touch Math worksheets and told the
she would work on those. You asked the student to count by ones for you and she was able
that up to the number 49. The student had difficulty knowing what number would come
continued by writing the numbers (by tens) at the bottom of the worksheet. You had the
complete a page writing the numbers in sequential order and then you circled the numbers
with a zero
in the second digit. After that, the student completed a dot-to-dot worksheet connecting the
numbers. You told the student she could color the dot to dot. [sic] The student spent one
her lesson time coloring. At the very end of the lesson, you did addition flash cards with the
It was very apparent that this student is extremely deficient in the area of math.
During the observation you gave plenty of
positive reinforcements to your students.
After the observation, I asked to see the
teacher's manual for Touch Math so that I could see the
lessons that were associated with the packet of handouts that you gave one of your students.
stated to me that you didn't have a manual. This concerned me because you did not teach a
lesson to that student, you just gave the worksheets to her to complete. There needs to be a
of teaching sequential skills to students based upon their IEP goals and objectives.
As I looked over your lesson plans, you did
not have any lesson plans developed for two of your
students. Instead of having a lesson plan that addressed the area of instruction for the
is extremely deficient in the area of math, this student spent one third of her instruction time
a picture. The IEP was not being followed for this student.
In your previous formative evaluations, I mentioned sitting next to
your students so that it is easier for them to see
the visual work. Due to your technique of using visual clues with students, it is imperative
that your [sic] sit next to
your students so that they are able to utilize this technique without confusion. This seems to
continue to be a struggle
for you. The area of closure with your students was also addressed in previous evaluations.
You need to continue
improvement in this area. Students need to know what they will be learning next a
new concept or reteaching of one
that the student is struggling with. The development of appropriate lesson plans continues to
be an area of deficiency.
. . .
The Board of Education held a private conference with the Grievant regarding the
issue of her non-renewal
on February 13, 2002, and immediately following that conference voted unanimously not to
renew her contract. She
was notified of this action by letter dated February 20, 2002, the receipt of which she
acknowledged on February 27,
2002. This grievance followed.
THE PARTIES' POSITIONS
The Union's Initial Brief
The Union believes that the record fails to support any justification for the
non-renewal of the
Grievant. She is a competent teacher, interested in improving her teaching abilities and she
be reinstated with full back pay and benefits, including raises or increases which she may
had she not been non-renewed.
The decision to non-renew the Grievant's contract was made in November, 2001,
following three short
classroom evaluations performed by the new principal, Donna Bessen. Consequently, the
focus should be on that
period from August, when Bessen began as the new principal, to November, when the
decision to non-renew was made.
But, even if one considers events which occurred prior to that time, the conclusion should
still be that she is a well
qualified and competent teacher.
The Union asserts that the Arbitrator may conduct a hearing de novo
as to the factual allegations leading to
the non-renewal of a teacher. This is a two-step process, the first step being to determine
whether or not the factual
allegations against the teacher have been proven and the second step to determine whether
nor not the charges, if
proven, constitute just cause for discharge. In support thereof, the Union cites West Salem
108 Wis. 2d 167; 321 N.W.2d 225 (1982). The Union says that the
factual allegations against the Grievant have not
been proven and, even if they have been proven, they do not rise to the level of good cause
for discharge or non-renewal.
The Union compares the licensure of the Grievant with that of her evaluator, Bessen.
The Grievant holds a
master's degree in teaching and a special state license in the areas of "learning disabled" and
as well as elementary education for kindergarten through 8th grade. The
LD and ED licensure covers pre-kindergarten
through 9th grade. She also continues to take seminars and additional
graduate level courses to improve her teaching
abilities. Bessen, on the other hand, is not licensed in LD or ED. Her only licensure is in
elementary education with
licensure as a principal coming in December, 2001, after the period of primary focus in this
matter. The Union
discounts Bessen's experience some 15 years ago with Gogebic-Ontonagon Headstart when
she wrote IEP's for
headstart children because she had never been certified in any special education area and
because she was not a
licensed teacher at the time. She did take a course in dyslexia at one time but had not taken
any other courses in the
LD/ED area. With reference to the Woodcock Johnson III test, Bessen has had no training
experience with this tool although she did work to some degree with its predecessors. The
Union notes with interest
that the District's Director of Special Education during the period of Bessen's evaluations,
Trisha Oeltjenbruns, did
Bessen had no experience evaluating elementary teachers prior to the Fall of 2001 nor
seek any particular advice on the subject prior to evaluating the Grievant. Despite the
Oeltjenbruns, Bessen never considered seeking the input of someone with an LD background
evaluations of the Grievant.
The Union summarizes the reasons for non-renewal as expressed by the District as
1. Failure to complete the prior remediation plan;
2. Failure to develop and implement
teaching strategies and techniques;
3. Failure to communicate with
4. Failure to prepare and comply with
IEPs (this includes appropriate use of the Woodcock Johnson III test).
Although Bessen testified that an evaluator may not see things happening during an
evaluation lasting as long as an hour, her evaluations only lasted 40 minutes, 52 minutes and
minutes respectively. Also, Bessen agreed that these types of evaluations are very subjective
that "stop by" observations are untrustworthy.
Bessen's first formative evaluation of September 30, 2001, resulted in concerns
the introduction and closure of the subject matter and to the Grievant's lesson plans. She
testified, however, that the Grievant did introduce fact families and had appropriate student
While Bessen was critical of moving to a quiz, she did not know if it related to previously
introduced material. She confirmed that there was appropriate student interaction, an
technique and that student response was okay. During this evaluation, a regular education
delivered a paper to the Grievant's classroom which the Grievant properly
introduced into the classroom setting. Bessen was also not critical of the Grievant's
appropriate instruction technique and feedback on a quiz; her use of positive reinforcement;
way in which she sought student input; explanations provided by the Grievant; her consistent
work with the lesson plan and appropriate instructions on reading; the Grievant's change in
activities (noting Bessen's acknowledgement that LD student progress is not always consistent
making planning sometimes difficult); and her use of modeling and positive reinforcement.
The subjective nature of these evaluations is highlighted, argues the Union, by
agreement that the Grievant introduced multiplication but suggested it could be done
and that the use of flash cards was okay but could have been done by an aide. (The Grievant
not have an aide.) Bessen also agreed that the Grievant's techniques of reminding the
prior lessons and her attempts to slow them down in their learning were appropriate. The
concludes that Bessen did, in fact, agree with a number of techniques employed by the
and that she, in substantial part, provided introduction and closure to her students.
As a result of Bessen's second formative evaluation, which took place on October 30,
2001, she had
essentially the same concerns as before, i.e. introductions, closures and lesson plans, but she
added another: the
fact that the Grievant sat across from her student rather than next to him. The majority of
actions taken by the
Grievant during this evaluation, including introductions and closure, were appropriate and
confirms this. Once again, the subjective nature of these evaluations is demonstrated by the
record and the level of
criticism is difficult to quantify.
The final formative evaluation performed by Bessen prior to her recommendation for
place on October 31, 2001, and, according to Bessen, the Grievant once again performed
Bessen was not aware of the prior remediation plan and did not discuss it with the
outgoing administration. The Union notes that this points to a lack of communication on the
of the administration. Since this plan ran until the end of the 2002 school year, it was
for the Grievant to have completed it before Bessen made her recommendation for
November, 2001. This weakens the strength of the allegation that the Grievant failed to
it as used by the administration in support of her non-renewal. Bessen agrees that someone
have told her about it and that it would make sense to follow through on the plan in order to
determine whether or not it worked. In any event, the issue is essentially moot since Val
another LD teacher and the peer mentor identified in the plan, did not believe the Grievant
mentoring and was not inclined to play that role; the school psychologist, Schuler, the person
charged in the plan with overseeing the Grievant's use of the Woodcock Johnson III test, did
agree that she needed such oversight and that her (Schuler's) observation of the
the test would invalidate the results and, finally, Ms. Chartier, the then Director of Special
Education and the person who had put the plan together, determined the Grievant had made
progress toward the goals of the plan and was dedicated to self-improvement.
Although Bessen was in possession of letters from other LD, CD and ED
which were complimentary of the Grievant, she did not follow up with them or question the
results of her evaluations.
On the issue of the Grievant's communication with regular education teachers, the
argues that the Grievant did meet with four teachers pursuant to Bessen's desires. Although
meetings were not completed, Bessen could not say that the Grievant resisted them in any
As for a meeting with the regular education teachers as a whole set up by the Grievant,
agreed that such a meeting would promote communication although she was critical of it.
On the issue of the inappropriateness of the Grievant's lesson plans, one of the
leveled by Bessen, the Union notes that during the hearing, Bessen agreed that the plans
as time went along and that the plans for the days of her evaluations themselves, while they
not match the classroom activities, were okay and that she (Bessen) did not compare them
the individual IEPs.
Other teachers and parents presented letters and testimony in support of the
teaching prowess. This evidence, along with the foregoing, supports the conclusion that the
Grievant is a competent and well-qualified teacher who has adequately responded to the
allegations against her which resulted in her contract non-renewal and is worthy of
The District's Initial Brief
The District, of course, agrees that the issue here is whether it had just cause to
non-renew the Grievant. It
refers to Arbitrator Carroll R. Daugherty's seven questions enumerated in Enterprise Wire
Co., 46 LA 359
(Daughtery, 1996) as a basis for the definition of just cause but points out that the facts of
any given matter may be
such that the guidelines set forth by Daugherty may not be applicable with precision. Also,
not all arbitrators have
accepted the proposition that a "no" answer to any one of the seven questions proves the
non-existence of just cause.
It argues that not all arbitrators have felt bound to a "mechanical application" of the
questions, and citing School
District of Janesville, A/P M-91-294 (Baron, 8/27/92) and Sawyer County, WERC Case
103, No. 48834, MA-7729 (Jones, 11/15/93) says "that a proper analysis of just cause can
be conducted utilizing the basic standards of
fairness." The District quotes Arbitrator McLaughlin (School District of New Richmond,
WERC Case 35,
No. 50773, MA-8376 (McLaughlin, 7/6/94);
. . . where the agreement does not specify the standards to be
applied and where the parties have not otherwise
stipulated to them, the just cause analysis must address two elements. The first is that the
Employer demonstrate the
misconduct of the employee and the second, assuming this showing is made, is that the
Employer establish that the
discipline imposed was contractually appropriate. . .(Sawyer County at page 7)
Arbitrator Shaw (School District of Spring Valley, WERC Case 27, No. 55951,
MA-10126 (Shaw, 12/4/98) at
. . .in making that determination, it is necessary to determine
whether the employee engaged in the improper
conduct for which he/she has been disciplined and, if so, whether the level of discipline
imposed is reasonably related
to the employer's interest in discouraging or preventing such conduct.
and Arbitrator Hahn (CVTC, WERC Case 192, No. 59553, MA-11331 (Hahn, 9/10/01):
. . . just cause requires a due process for an employee and due
process requires notice of the employee's
deficiencies, an opportunity to correct those problems and progressive discipline if the faults
are not corrected, which
includes the warning in the progressive discipline procedure, that future failings will lead to
more severe discipline
The District says that there is no question that the Grievant had notice of her
deficiencies and an opportunity
to correct them. The new administration (Bessen, et. al) was willing to "ignore" the past and
start anew with the
beginning of the 2001-2002 school year. If the Grievant had made "any effort to reestablish
the old remediation plan
or to work closely with Ms. Bessen and the regular ed teachers. . . she would have saved her
job." But instead of
working with Bessen, the Grievant refused or failed to face up to her old deficiencies. As
the complaints about her
from parents and teachers piled up, the Grievant "sat mute" during evaluation discussions
and "when Ms. Bessen
attempted to rectify the communication problem with individual teacher meetings, Ms.
Pieczynski held the group
meeting emphasizing the need to improve communication from the regular ed teachers to
The District asserts that it is required to observe its own policies and procedures.
(State ex rel. Meeks v.
Gagnon, 95 Wis. 2d 115 (1959)). Its policy on staff evaluation states:
The staff evaluation program shall aim at
the early identification of specific areas in which the
individual professional staff member needs help so that appropriate assistance may be
arranged for. A supervisor offering suggestions for improvement to a professional staff
not release that professional staff member from the responsibility to improve. If a
member after receiving a reasonable degree of assistance fails to perform his/her assigned
responsibilities in a satisfactory manner, dismissal, or non-renewal procedures may be
such an instance, all relevant evaluation documents may be used in the proceedings.
The District has the management right to judge employee performance through the
process and, although those evaluations are subject to review, the standard of review is a
and should not be disturbed unless it is apparent that the District was arbitrary, capricious or
without a basis in reason.
The District reminds the Arbitrator that documents unchallenged at the time of receipt
are accepted on their
face without relitigating the merits at a later time. (New Lisbon School District, Case 33,
No 52870, MA-9134
In closing, the District argues that its staff evaluation policy is not significantly
Arbitrator Hahn's just cause standard. It aims to identify areas of deficiency in order to
appropriate assistance; provides for identification of those problem areas to the staff member;
provides for an offer of assistance. In this case, the Grievant failed in her responsibility and
District proceeded to non-renewal pursuant to its rights and to its obligations to its students.
The Union's Reply
While the District continues to refer to the prior remediation plan in the negative, it
note that the Grievant made admirable progress towards its goals and was praised by her
then-supervisor Nancy Chartier for that progress. Consequently, her probationary status was
she was restored to the proper salary schedule.
The District also ignores the fact that the remediation plan, if one was in effect at all
at the beginning of the
2001 school year, could not have been completed. The peer mentor, Hellum, selected by
Chartier did not believe that
the Grievant needed such assistance. Even so, the Grievant sought her assistance in this
regard. The monthly meetings
required by the plan were never held because after the first meeting Chartier made her
praising comments about the
Grievant and recommended that she be reinstated. The last point raised in the plan relating
to the Woodcock Johnson
III testing is misleading because the school psychologist, Schuler, testified that one, she
never doubted the Grievant's
ability to administer the test and, two, that her (Schuler's) presence during the administration
of the test (in order to
monitor it) would invalidate the testing. Schuler's conclusion was that the administration
obviously did not understand
the nature of the Woodcock Johnson III.
The complaints Bessen testified were made to her by various regular education
the Grievant "do not square with the letters that they presented" in this case. Only one
noted from a parent, and the Union posits that one unhappy parent out of a total of twelve
(the Grievant's student load) is not surprising. Since the only testimony at the hearing
teacher/parent interaction with the Grievant was positive toward the Grievant, the Union
that this criticism has little or no merit. The evidence does not support the nature of the
leveled by Bessen against the Grievant.
Bessen did not believe that the Grievant was resisting the individual meetings she
had suggested take place among the Grievant, Bessen and each regular education teacher to
the issue of communication and although the administration criticizes the Grievant's meeting
of the regular ed teachers to address communication, this criticism is belied by their own
The conclusion that the administration's decision to non-renew the Grievant in
2001, is supported by the fact that they had no knowledge of the prior remediation plan and
reviewed any previous evaluations. Hence, the decision was made based on the three
done by Bessen in the Fall of 2001. The Union criticizes the administration for now
claiming that its
decision was based, at least in part, on events which occurred during the six week period
the initial decision in November.
Regarding the hearing before the School Board, the Union emphasizes that only
the Grievant testified at any length while Waller said that he did indicate that he supported
decision of Bessen. So, any suggestion that the School Board hearing delved into the issues
case to any great extent is misleading.
In conclusion, the Union says that the District has failed to establish a just cause
non-renewal of the Grievant and that the Grievant has shown that she made a concerted effort
Bessen's suggestions given the constraint of the LD setting. She changed her method of
plans in order to address Bessen's complaints. In short, she has shown that she is a
hardworking teacher undeserving of this process.
The District's Reply
The District reiterates Bessen's qualifications as a principal and teacher and says that
the areas in which she
evaluated the Grievant were not, for the most part, highly technical and she was qualified to
evaluate the Grievant.
Regarding the Union's criticism of the fact that the District failed to call Oeltjenbruns
as a witness and the
fact that the Grievant touted the support of fellow special education teachers,
the District reminds the Arbitrator that
the Grievant's problems were between her and the regular education teachers
and that in the Hurley School District,
administrators evaluate staff, not staff.
In response to the Union's assertion that the decision to non-renew the Grievant's
was based upon the three evaluations done by Bessen, the District says it was based on those
"frequent informal observations, Ms. Pieczynski's response to the directive for individual
with the regular education teachers, teacher complaints, parent complaints, Nancy Chartier's
evaluations, and Ms. Pieczynski's past record which included the reinstatement of her
a failure to pursue remediation plans offered her." It says that "the non-renewal
not the subject of this arbitration, the Board's
decision is" and argues that the Board, in making that decision, had the benefit of "all
that went into
the recommendation, another formative evaluation, the resultant summative evaluation, Ms.
Pieczynski's lack of preparation for the January, 2002, IEP meeting, the attendant lack of
regarding the interpretation of the Woodcock Johnson III test results and Ms. Pieczynski's
Although the Grievant did most things right during the formal evaluations, she
teaching deficiencies which, when considered in the context of other indicators, more than
Administration's recommendation and Board's decision to nonrenew" the Grievant. The first
evaluation was shortened by 15 minutes due to the Grievant's lack of planning for the day's
The other two evaluations also involved a lack of planning. This lack of planning resulted in
lesson starts and lack of clarity of the learning objectives in the first evaluation; a "forgotten
and missing materials during the second evaluation; and a student relegated to coloring much
time during the third evaluation. This lack of planning also contributed to the
"disappearance" of the
Grievant following the second evaluation.
Regarding the remediation plan developed by Chartier, the District maintains that it
be viewed as a contract binding the parties to the end of the 2002 school year. This
would give to the Grievant more protections than are given to teachers without a remediation
The Grievant's communication with other teachers did not improve following the
nor did her lesson planning. The District argues that the lesson plans introduced at the
completed after the classes and are, therefore, inappropriate.
At issue is whether the District had just cause to non-renew the Grievant's teaching
Discharge places the Grievant's job, seniority, contractual benefits and reputation at stake
constitutes the most extreme penalty available in the workplace. Hence, the burden is on the
to prove wrongdoing and justification for its actions by a preponderance of the evidence.
Few, if any, contracts contain a definition of "just cause" and the CBA here is no
There is no uniform definition of what constitutes just cause and so it becomes the job of the
Arbitrator to define such parameters based upon the facts of the case. On the function of the
Arbitrator in such cases, I agree with Arbitrator Harry Platt. He said:
It is ordinarily the function of an Arbitrator in interpreting a
contract provision which requires "sufficient cause"
as a condition precedent to discharge not only to determine whether the employee involved is
guilty of wrongdoing and,
if so, to confirm the employer's right to discipline where its exercise is essential to the
objective of efficiency, but also to safeguard the interests of the
discharged employee by making
reasonably sure that the causes for discharge were just and equitable and such as would
reasonable and fair-minded persons as warranting discharge. To be sure, no standards exist
an Arbitrator in finding a conclusive answer to such a question and, therefore, perhaps the
best he can
do is to decide what reasonable man, mindful of the habits and customs of industrial life and
standards of justice and fair dealing prevalent in the community ought to have done under
circumstances and in that light to decide whether the conduct of the discharged employee was
defensible and the disciplinary penalty just. Riley Stoker Corp., 7 LA 764, 767 (Platt, 1947)
The District references Arbitrator Carroll R. Daugherty's well
known seven questions as
providing a potential definition for just cause but observes that Daugherty acknowledged that
facts in any given case may not be capable of application to the questions with precision.
did not comment on the use of these questions nor did it put forth any particular suggestion
as to the
elements of just cause.) Daugherty's questions have been criticized as being too mechanistic.
are objective and require "yes" or "no" answers and Daugherty himself admitted that "The
to the questions in any particular case are to be found in the evidence presented to the
the hearing thereon. Frequently, of course, the facts are such that the guide lines [sic]
applied with slide-rule precision." Grief Bros. Cooperage Corp., 42 LA 555, 557
1964). Absent contractual direction or a stipulation by the parties to apply Daugherty's
questions, the undersigned is reluctant to imply them into the agreement of the parties.
I believe just cause requires a finding that the employee is guilty of the conduct in
or she is alleged to have engaged and that the level of discipline imposed as a result of that
is reasonably related to the severity of the conduct. Just cause mandates not merely that the
employer's action be free of capriciousness and arbitrariness but that the employee's
so faulty or indefensible as to leave the employer with no alternative except to impose
Platt, Arbitral Standards In Discipline Cases, in The Law and
Labor-Management Relations, 223,
234 (Univ. of Mich., 1950). Fully entrenched in this definition are the core concepts of due
and fair dealing.
The Grievant asserts that the Arbitrator may consider the factual elements of this case
novo. The CBA is silent on the issue of the standard of review and, in such cases,
discretion in the review of discharge/discipline cases to apply a de novo
standard or the more
restrictive abuse of discretion standard. See Nicolet High School District v. Nicolet
Education Association, 118 Wis. 2d 707, 715 (1984). Based on the above and on the
afforded the Arbitrator under the terms of the CBA, the undersigned will review the
the Grievant's contract de novo.
Even if one accepts the factual content of each of the three
evaluations performed by Bessen
in 2001 and 2002 as true and correct, which the Arbitrator does not, and discounts to a
Grievant's exception to many of them, which the Arbitrator does, the District's argument in
of the Grievant's non-renewal still must fail. It must fail for three specific
and distinct reasons. First, the nature and extent of the alleged deficiencies
demonstrated by the
Grievant, as reported by Bessen in her evaluations and other "notes," while sufficient to
portion of the District's evaluation policy offering "appropriate assistance," were insufficient
support the most severe disciplinary measure available termination; second, the
District failed to
give the Grievant sufficient time and opportunity to remedy her alleged teaching deficiencies;
third, the District failed to afford the Grievant due process in the form of notice that her
employment was in jeopardy until the decision to non-renew her contract had been made and
too late for her to reverse the process.
The record is lengthy and contains page after page of evaluation notes and testimony
Principal Bessen regarding the Grievant's difficulties communicating with regular education
using what Bessen describes as inappropriate teaching techniques; complaints from other
parents; lack of knowledge in the use of the Woodcock Johnson III testing tool; failure to
in extra-curricular classes and other after-school activities; poor classroom planning and
and other assorted deficiencies, gleaned, for the most part, from three evaluations. If one
review these writings in a vacuum, one would emerge with the conviction that the Grievant
of the most inadequate teachers ever to occupy a classroom. But I do not view them in a
None of these evaluations lasted longer than an hour and the results of one of them, the one
conducted in January, 2002, are suspect because, by that time, the recommendation to
Grievant had already been made and communicated to the Board by the administration upon
recommendation. On the other side of the coin, the record is replete with evidence of
refutation of these allegations via the testimony of the Grievant and of Patricia Ann Entler,
Schuler, and Lori Lund, three of the Grievant's co-workers, and Patricia Strand, a parent of
the Grievant's students. In many cases, the Grievant firmly denies the allegations. The
views both Bessen and the Grievant as essentially truthful witnesses and does not doubt that
criticisms of the Grievant, while in some respects probably overstated, were made in good
testimony of co-workers called to the stand by the Grievant may be expected to be favorable
Grievant's case. While mindful of that, the undersigned nonetheless finds them to be
sincere, likewise the testimony of Mrs. Strand. The difficulty with the District's position lies
course of action it chose to take upon the identification of the Grievant's alleged difficulties.
balance, the Arbitrator is persuaded that the teaching deficiencies alleged to have been
the Grievant, while worthy of further evaluation and continued efforts by both parties to
improvement, were insufficient to justify the most harsh discipline of termination. The
to the Grievant dated February 20, 2002, advising her that her contract would not be
to set forth the reasons for the Board's actions. Although the record does not specifically say
undersigned assumes the reasons are the same as those set forth in Waller's letter dated
2002, the Grievant's first notice that the Board was considering her non-renewal. Those
. . .
l. You have failed to satisfactorily complete the
remediation plan dated February 19, 2001.
2. You have failed to develop and implement
teaching techniques and strategies for use with student with
learning disabilities in the regular and special education setting.
3. You have failed to
communicate and collaborate with colleagues regarding teaching techniques and strategies
for use with learning disabilities.
4. You have failed to timely
prepare individualized Educational plans and failed to comply with Individualized
Educational Plan requirements.
. . .
As to number one, her failure to complete the remediation plan, she was given notice
her non-renewal three months before that plan was to have been completed. In any event,
been essentially relieved of the duty to complete that plan by Chartier when, in June, 2001,
(Chartier) recommended to the Board that the Grievant be reinstated. At that time Chartier
altered the remediation plan and acknowledged that "Although the remediation plan is not
completed Mrs. Pieczynski has confirmed that she is willing to work toward the completion
set objectives." The record reflects that she continued working toward those objectives
the first semester of 2001, albeit not to Bessen's complete satisfaction, and so met her
responsibilities as set forth be the previous administration. Importantly, Bessen was unaware
that remediation plan during her first semester evaluations of 2001 and, therefore, unaware
Chartier's arrangement with the Grievant in this respect. Had she reviewed the Grievant's
may have been able to take advantage of the past efforts by the administration to work with
Grievant and may have perhaps have been able to build upon those efforts to the benefit of
Grievant and the District. As to numbers two and three, her failure to "develop and
teaching strategies" and her failure to "communicate and collaborate with colleagues
teaching techniques and strategies," these two go hand in glove. The first is denied by the
Grievant and supported only by Bessen's three rather brief observations, one of which was
conducted after the non-renewal recommendation had been made. The second is denied by
Grievant and belied by the testimony of witnesses called by the Grievant. The record simply
not support the ultimate conclusion that the Grievant refused or failed to communicate with
colleagues. Some colleagues may have had communication issues with her but certainly not
extent that termination was justified. Regarding the fourth reason, that the Grievant failed to
timely prepare Individualized Educational Plans and failed to comply with IEP requirements,
record is obscure on this point. Giving the District the benefit of the doubt by concluding
number four his merit, it is still not sufficient reason to extract the highest disciplinary price
employee can pay.
The District places some emphasis on the fact that the prior administration had
same problems with the Grievant and had reached the same conclusion, i.e., to non-renew
contract. The record supports the conclusion that the prior administration worked with the
to improve her teaching skills but hardly supports the proposition
that it concluded she be terminated. The prior administration evaluated her
identified certain areas which it felt could be improved. The prior administration formulated
remediation plan for her to follow, extended her probationary period and froze her on the
Soon thereafter, the person responsible for her evaluation and remediation plan, the Director
Special Education, Nancy Chartier, advised the Board that the Grievant was doing so well
should be returned to the proper wage scale position and her extended probationary period
be halved. The Board agreed. Thus, when the Grievant returned for the 2001 2002
she began with what the District itself describes as a "fresh start" and had reason to believe
job situation was secure. Indeed, Bessen testified that she was unaware of any prior
and supposedly began her evaluation process anew in September, 2001. By no later than
of that year (and the record strongly suggests that it was probably as early as November),
concluded that this teacher was not "cutting it" and recommended non-renewal. Her
Waller, also new to his position, supported her decision. The Arbitrator takes particular note
fact that Bessen, while consulting with other members of the professional staff during her
process, failed to engage the participation and expertise of the Director of Special Education,
Oeltjenbruns, in the process. She was not even consulted about potential remediation
Bessen decided the Grievant wasn't "cutting it." When Waller was advised by Bessen of the
Grievant's shortcomings and the fact that she wasn't "cutting it," he too failed to seek the
the Director of Special Education. The Grievant admits that she is not a perfect teacher and
has room for improvement but she only had, at best, about two months to correct all of the
deficiencies, real or imagined, identified by Bessen. The undersigned finds that this limited
time was insufficient to adequately evaluate and identify potential problem areas, let alone
them. It also contravenes the District's Staff Evaluation Policy because it fails to provide a
"reasonable degree of assistance" to a teacher in need of improvement.
Finally, just cause requires that the Grievant be placed on notice that the path down
which he or she is walking
leads to discipline, especially if that discipline means the loss of his or her job, and notice of
what steps he or she must
take to halt the process. Bessen and Waller acknowledge that they knew non-renewal was
the end-game at least as
early as November 12th. The Grievant did not receive initial notification
that the Board was considering the non-renewal of her contract until January 7, 2002.
Immediately following the statutory conference held on February 13th
pursuant to the Grievant's request, the Board voted to non-renew her contract. She was
advised of this action by letter
dated February 20th. She was given no opportunity to remedy the situation
following notice that her job was in
jeopardy. The Arbitrator finds it unconscionable that Bessen did not advise the Grievant
long before January 7, 2002,
that her job was at risk and of the steps she must take to avoid such a drastic consequence.
This clandestine approach
does not appeal to reasonable and fair-minded persons and does not embrace standards of
justice and fair dealing. Her
failure to so advise the Grievant frustrated the very core principals of just cause: due process
and fair dealing. By the
time the Grievant was advised that her job was in jeopardy, it was too late.
In light of the above, it is my
1. The Employer did not have just cause when it non-renewed the
Grievant's employment contract effective June
2. The Employer shall reinstate the Grievant's employment contract effective
June 30, 2002, and is directed to
make the Grievant whole for all benefits and wages lost because of the non-renewal pursuant
to the terms of the
Teacher's Master Agreement except:
a) All wages the Grievant earned in the interim that she
would not have earned
except for her non-renewal.
b) Any benefits she may have received from unemployment compensation.
3. The Arbitrator will retain jurisdiction over the application of the remedy herein for
period of at least sixty
(60) days to address any remedy issues which the parties are unable to resolve.
Dated at Wausau, Wisconsin, this 21st day of January, 2003.
Steve Morrison, Arbitrator