BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
MENASHA TEACHERS UNION, LOCAL
MENASHA SCHOOL DISTRICT
Mr. Timothy E. Hawks, Shneidman, Hawks & Ehlke, S.C.,
Attorneys at Law, appearing on behalf of the Union.
Mr. Edward J. Williams, Davis & Kuelthau, S.C., Attorneys at
Law, appearing on behalf of the District.
The Union and Employer named above are parties to a 2001-2003 collective
agreement that provides for final arbitration of certain disputes. The parties jointly asked the
Wisconsin Employment Relations Commission to appoint the undersigned to hear the
Julie Holly. A hearing was held on October 21, 2002, in Menasha, Wisconsin, at which
parties were given the opportunity to present their evidence and arguments. The parties
filing briefs by January 14, 2003.
The parties did not stipulate to the framing of the issues. This case presents two
1. Is the grievance timely?
2. Did the District violate the collective
bargaining agreement in the December 14, 2002
evaluation of guidance counselor Julie Holly? If so, what is the appropriate remedy?
The Grievant is Julie Holly, a high school counselor at the District since 1990. On
14, 2001, she received an evaluation also called Pupil Personnel Staff Growth
Record that is the
subject of this grievance. It was prepared by the high school principal, Dr. Larry Haase.
The Grievant objected to a number of statements made in the evaluation. On the first
of it, three boxes were marked as not meeting minimal competency area
competency, planning and
preparation, and professional standards. Seven other boxes were check as meeting or
The Grievant believes that several statements in the written portion of the evaluation
untrue. One sentence states: "Julie felt that meeting with all seniors to complete credit
meeting with juniors in small groups were her high points in this area." The Grievant stated
did not say that during the evaluation, although Haase stated that she told him that in the
In another paragraph, Haase stated that the Grievant had a history of mistakes in
course selections and credit attainment towards graduation. He cited an example that the
dropped an English class from a student's schedule so the sophomore had only 2.5 credits
semester, and stated: "The student was assigned to be a guidance office runner in place of
course." The Grievant objected to that sentence, and testified that she did not drop the
class in order for her to be a guidance office runner, that there was no
quid pro quo. Haase's concern
was that the student was a half credit short of the normal load of three credits per semester,
said that his comment about being assigned as a guidance office runner was a clarifying
The evaluation contained the following statement: "Julie's follow-up with parents,
and administration does not meet minimal competencies. Specifically, Julie neglected to
with a parent when instructed to by the principal." The Grievant said that statement was not
A foster mother notified Haase that she was concerned that a foster child was using
web sites at school, and Haase told the Grievant to deal with the situation. The Grievant
the school social worker, Robert Brooks. They decided to have Brooks meet with the
the Grievant was to contact the foster placement coordinator. About a week later, a meeting
held with the student's teachers and the parent. Brooks testified that he consulted with the
and had a meeting with the foster parent and staff to discuss the parent's concerns. Brooks
believe that the Grievant neglected to follow up with the parent, but noted that they divided
duties in handling the case. Haase testified that the foster parent called him the next week
she still had not been contacted, and he then told the Grievant that she needed to contact the
While the Grievant explained that other things were going on, Haase told her great,
but he had
asked her to contact the parent.
Haase cited another example in the same area of poor follow-up that he told
a student was having a problem with the teacher, and four days later, the Grievant had not
the student. The Grievant said that the statement was true but misleading, because she went
teacher who said she would talk to the student the next day. When the Grievant followed up
the teacher, the teacher said that they had resolved the matter. Haase stated that the student
expecting to hear from the counselor and his specific directions were to follow up with the
Also regarding following up, the Grievant was criticized for her lack of follow up
Zingler, high school assistant principal, regarding freshman orientation, and that she was 10
late to a meeting with 60 students because she went to lunch. During the summer of 2001,
Grievant was on sabbatical. In the last week of school in June of 2001, Zingler called her at
and told her she would be responsible for coordinating the freshman orientation. On the day
Grievant was 10 minutes late, she explained that the last student left her office at 10 minutes
She had not taken a break or lunch, so she went to a local sub shop and ate lunch and was
the meeting. There were other adults -- five or six administrators and teachers -- present and
to begin the meeting Haase felt that the Grievant set up the time table for the meeting with
students at noon, and after waiting a few minutes for her to show up, he started the meeting,
it understood that the Grievant was supposed to do it. Haase testified that the administration
kept in the loop as to how much work the Grievant was doing.
When Zingler met with the Grievant before the orientation program in the summer of
she asked the Grievant to see her at the end of the day. Zingler wanted the Grievant to make
of materials needed for the program. The mentors were leaving the building when Zingler
find the Grievant, who was not there. Zingler waited for a few hours and called the
Grievant at home
and left a message to contact her about how the mentor meeting had gone. Zingler
that she got the information required when they met that week. Zingler also testified that the
Grievant knew she was responsible to kick off the program at noon, although the Grievant
that she had not had lunch and she might be a little late getting there. Zingler felt the
orientation had gone quite well overall.
Haase noted in the evaluation that the Grievant's preparation for at-risk-committee
meetings was poor. The Grievant chaired ARC meetings between 1991 and 1997 without
evaluations. The chair went to other people until the Grievant became chair of it again when
returned from sabbatical. The chair is responsible for facilitating the ARC meetings. The
secretary sends out a notice and an agenda to all ARC committee members -- three
school-to-work coordinator, the school psychologist, the school social workers, two assistant
principals, and the police school liaison officer. Haase noted that one meeting in which
candidates (a program for at-risk sophomores) were examined, the Grievant blamed her lack
preparation on the department secretary. There are four pages with a PROS application. At
meeting where the ARC people were reviewing PROS applications, the Grievant was given a
of papers in the morning to hand out to the
nine members of the ARC. She did not realize that the applications were not collated
them all into the meeting and passed each of the four pages to all nine members. She did not
that she blamed her secretary for lack of preparation. Haase also felt that documents were
complete in terms of transcripts. He recalled that the Grievant stated that her secretary did
the paperwork together the way it was supposed to be done. He felt that she should have
documents ready to go because she had been a facilitator for many years. Zingler testified
thought the Grievant was not organized and that she put the responsibility onto her secretary.
Another statement that the Grievant felt was untrue was: "Her facilitation of the
meetings has not been focused and, at times, ineffective as reported by the assistant
assistant principals, the principal and the athletic director or activity coordinator met weekly
talked about this issue a couple of times. Haase said that two counselors and the school
said that the meetings were going nowhere, that while they talked about PROS, they did not
Haase stated in the evaluation: "Her planning and preparation for freshman
suspect, as the administration needed to pick up many pieces." Haase testified that he
the lunch person regarding food, and he thought there could have been better communication
administration. The Grievant spent 24 hours of the summer preparing for the freshman
day for the fall of 2001. Her hours were deemed excessive and she filed a grievance to get
compensatory time for those hours. The grievance was filed on December
7th, a week before the
evaluation. She was granted the compensatory time.
The Grievant objected to a statement that her judgment was questionable in a variety
situations, and that her communication with fellow department members and the
was poor. The Grievant was not aware that anyone on staff or the administrative team had
complained about her.
Haase noted that there was an incident of potential self harm to a student where the
did not confer with anyone else before planning to send a student home, even though all
administrators and counseling staff were available. He stated in the evaluation: "She did
PSLO to take the student home without consulting with administrative staff." The Grievant
that a teacher brought a student to her room and said that the student ingested some pills.
few seconds, the Grievant found out that the student took four to six aspirin and called the
mother. The Grievant was going to call the police school liaison officer (PSLO), but while
dialing the phone to the mother, Haase came in and asked what she was doing. When the
replied that she was calling the mother, he asked what she was going to do next, and the
replied that she would call the PSLO. Haase said not to do that, that he was sending the
the administrator. The Grievant felt that it was not true that she did not confer with anyone
she did talk to administrators about this. She also felt it that the statement that she called the
was false because she never called the PSLO and was directed not to do so. The PSLO was
Watzka, who testified that she never received any calls from the Grievant regarding
Haase's recollection is that a teacher told him of a potential overdose, and he called Zingler.
into Watzka as he was walking out of his office, and said that they had a situation. Watzka
that she knew about it, that she just got a call to take a student home. Haase was concerned
Grievant was not communicating with anyone else for his or her input and was going to have
student transported home before talking to an administrator.
The Grievant objected to the statement that her time management did not allow her to
appropriately follow up to student and staff needs. Haase stated that this comment referred
Grievant not following through with parents or students and saying that she was busy doing
things but neglecting the things he wanted done.
Haase suggested in the evaluation that the Grievant could attend co-curricular events
students to see her after regular hours. The Grievant understood that the District could not
her to work after the hours of 7:30 a.m. to 3:30 p.m. In another portion of the evaluation, it
again suggested that she attend co-curricular events. Union Representative Greg Weyenberg
been the spokesperson for the Local Union for more than 20 years and served on negotiating
for collective bargaining. He testified about the contract language of the teaching day, and
negotiated for additional time outside the regular day. The contract refers to building
needs, curriculum work, public relations functions, open houses, parent meetings, lesson
conferring with parents about students' work, evaluation of pupil responses, curriculum
and other professional activities. Weyenberg said that attending co-curricular events outside
teaching day was not covered by the labor contract. Haase responded that the suggestion to
Grievant to attend co-curricular events was not mandatory.
The Grievant objected to a statement regarding the administration's perception that
practicing therapy with students. She stated that she does not engage in the practice of
students. Haase stated that the Grievant's conversations with students are often lengthy, that
door was often closed when she was with a student.
Another sentence stated that the Grievant would work with another counselor's
without informing that counselor of the contact or subsequent action. The Grievant did not
what Haase was referring to and believed that statement to be untrue. Haase testified that he
discussed with the Grievant a student being dropped from a math class. Two counselors told
their concerns about the Grievant meeting with their students without telling them.
Haase also stated: "Administration has fielded concerns from at least five staff
Julie is difficult to contact in person. They have checked and she is often behind a closed
very rarely here before 7:30 A.M. or after 3:30 P.M." The Grievant testified that she did
if there were any staff members who stated a concern. She closes her
door because of personal and social counseling where privacy and confidentiality are
testified that it was not true that she was rarely there before or after working hours. Haase
he told the five staff members who complained about contacting the Grievant to use e-mail to
hold of her.
Meg Zabel, no longer teaching in the District, was a lead alternative teacher and
the ARC with the Grievant during the school year 2001-2002. She testified that she did not
the Grievant neglected to follow up with her on any case they had in common, or that the
failed to follow up with a parent. Zabel testified that she did not believe that the Grievant
prepared for ARC meetings, or that the Grievant was not focused or ineffective in facilitating
meetings. She did not find the Grievant difficult to contact. Zabel noted that Haase told
teachers that they should attend at least two extracurricular events during their first year of
Alfred Taylor is a school psychologist at the middle and high schools and has worked
the Grievant. He did not feel that her follow up with parents or students was inadequate.
a member of the ARC, and had no first hand knowledge of the Grievant blaming a lack of
on the department secretary. Taylor testified that statements that the Grievant was not
ineffective as a facilitator were false, and that he had not seen her working as a therapist.
testified similarly that it was a false statement to say that the Grievant's preparation and
of ARC meetings was poor. Watzka, who also attended ARC meetings, testified that the
preparation and facilitation of ARC meetings was not poor or ineffective.
Robert Pawelkiewicz is a teacher in the District and the grievance co-chairman since
1985. He has served on the negotiating teams for the Union and has been secretary and
He has filed numerous grievances at the elementary and secondary level, probably three a
average. Pawelkiewicz testified that it was the Union's practice to try to resolve a dispute
filing a grievance -- he called it investigating a grievance. There may be times when the
immediately file a grievance, such as when a teacher has been suspended. Other times, the
would go to the administration and talk with the principal, get his side of the story, and try
out the situation so that it would not become a grievance. Pawelkiewicz could not recall
16 years that the District objected to the processing of a grievance on the grounds that it was
Pawelkiewicz represented the Grievant in the compensatory time grievance when she
some hours in the summer for the freshman orientation. The issue arose in September, and
Grievant spoke to Pawelkiewicz about it. He then talked to Haase about it, conferred with
Grievant again, and after going back and forth, filed a grievance on December 7, 2001.
Union agreed in writing to extend the time for the meeting in Step 2 of the grievance
through December 18, 2001, with the understanding that the administration's response time
in Step 2 would be from that date. On December 21, 2001, the parties agreed to in writing
the period for the administration's response to
January 7, 2002. There was no agreement to extend the time for the initial filing of
Pawelkiewicz considered that grievance -- as well as this one -- to be ongoing grievances.
compensatory grievance was resolved at step two, at the principal level. Pawelkiewicz met
Haase regarding the current grievance and hoped that Haase would change what the Union
felt to be
The instant grievance was not filed until March 7, 2002, although the evaluation was
to the Grievant on December 14, 2001, and she signed it on December 21, 2001. Haase
initial grievance and did not grant an extension of the time limits in the grievance procedure.
parties agreed on March 18, 2002, to extend the time for the administration to respond,
giving it five
days after it received the Union's concerns in writing.
Dr. Michael Thompson is the superintendent of schools and has been in that position
years. He was not aware of any agreement to extend the initial filing time of the grievance
case. He testified that the District was meticulous about time lines, that there were
where the parties extended the time lines in the processing of grievances, but they have
it with mutual agreements and signed agreements that the time lines were being extended.
did not recall a prior case with an issue about the timeliness of the filing of a grievance.
The parties stipulated that the terms of the 1999-2001 collective bargaining agreement
be applied as if it was in full force and effect at all times relevant to this grievance.
THE PARTIES' POSITIONS
The Union asserts that the December 14, 2001 evaluation conducted by the District is
arbitrary and capricious and violates Article VII of the collective bargaining agreement. The
standard of fairness and fair dealing inherent in it require the District to only make truthful
in the employee's performance evaluation. Arbitrators have recognized that there is an
standard of fairness and fair dealing in employers' evaluation of employees and that
are arbitrary or capricious are invalid. While there was no discipline imposed, an
assessment of the employee's work performance is a benchmark to which future evaluations
compared and could result in discipline. The language of the bargaining agreement regarding
evaluations is meaningless without the requirement that the employer deal fairly and provide
honest assessment based on factually correct statements of the employee's job performance.
Arbitrators agree that unsatisfactory performance evaluations are arbitrable and should be
by the truth of an employee's work performance. Arbitrators also recognize that an
negative performance evaluation must be substantiated by documentation or other
evidence, particularly where the employee denies the employer's allegations.
The Union submits that the evidence and testimony reveal the falsity of the District's
evaluation, and the evaluation and violates the standard of fairness and fair dealing. The
assertion that she failed to meet minimal standards in area competency is factually untrue.
District stated that Holly has a history of making mistakes in student course selections and
attainment towards graduation, citing an example when a student was assigned to be a
runner in place of a course. Holly testified that she did not drop the student's English class
for her to be a guidance office runner. Haase was not even sure who assigned the student to
runner position. Therefore, that statement has no place in Holly's performance evaluation.
The District also alleged that Holly failed to follow up with a parent when instructed
Haase. Holly did in fact follow up with the parent after she talked with Brooks, who agreed
with the student. Holly and Brooks handled the matter as a team and met with the student's
and foster parent a week later. Brooks disagreed with the District's evaluation of the
Haase was apparently ignorant of the fact that Holly and Brooks had divided up the work as
and that Brooks agreed to call the parent. The statement that Holly did not follow up with
is factually incorrect.
The District alleged further that Holly was told by the principal that a student was
problem with a teacher and that she had neglected to see the student four days later.
first went to the teacher who was surprised to learn about the problem. Holly followed up
teacher who said that the matter was resolved by the teacher and the student. The Union
that the District's statement that Holly had a problem following up with directions from the
administration is incorrect. The District also alleged that Holly works with other counselors'
without informing them of the contact or action. Holly could not recall any complaints and a
colleague could not recall any such incident.
The Union states that the District's assertion that Holly's planning and preparation for
meetings and freshman orientation is not true. Holly had significant experience serving as
chair and was never evaluated negatively for poor preparation at ARC meetings. Contrary to
District's assertion, Holly never blamed her lack of preparation on the secretary. Some
were not collated when Holly went into a meeting, but she collated them when passing them
the meeting. Zabel testified that Holly was never unfocused in facilitating the ARC
meetings. So too
did Taylor. Brooks and PSLO Watzka never found Holly's preparation to be poor. There is
for the District's conclusion in her evaluation that her planning, preparation and facilitation
ARC meetings was inadequate.
The Union also takes issue with the District's allegation that Holly's planning and
for freshman orientation was not up to its standards. Haase did not provide her with much
and he assumed that she would know that she was to kick off the orientation by starting the
herself, despite the fact that she never coordinated this event before. Holly planned and
the freshman orientation day with the limited
information given by the District to the best of her ability. While she was late to a
students, the assistant vice principal knew that she would be a little late and other adults were
to begin the meeting.
The District's assertion that Holly failed to meet minimal competency in professional
standards is factually untrue. The District maintained that Holly did not confer with anyone
student took a drug overdose of aspirin. This is not true. Holly questioned the student and
to call the student's mother and intended to call the PSLO when Haase entered her office and
her to stop, that he was sending the student to an administrator. While the District stated in
evaluation that Holly called the PSLO to take the student home without consulting the
staff, she never called the PSLO because she was instructed not to by Haase. Watzka
Holly did not call her to take the student home.
The District also was critical of Holly's time and caseload management, and alleged
practiced therapy with students and that she was inaccessible to staff. Those who worked
found her follow up to be adequate. The District maintained that by closing her door during
she was practicing therapy with her students and appeared inaccessible to others in the
department. The District did not identify staff members who complained, and Zabel and
never found Holly difficult to contact. Taylor did not see Holly working as a therapist and
referred students to community clinicians when appropriate.
The Union contends that the collective bargaining agreement does not require
extracurricular activities outside of working hours, and the District cannot suggest that Holly
to improve her performance. The principal told employees that they should work beyond
contractual hours or they did not belong working there. Haase admitted that Holly's
co-curricular activities would be helpful but that it was not mandatory. The District's use of
it deems helpful but not part of professional obligations has no business in the performance
Finally, the Union argues that the grievance was processed according to an
practice in the District and it should not be dismissed as untimely. The parties were trying
informally resolve the grievance of the performance evaluation short of grieving it.
testimony established a pattern or practice of informally resolving disputes before they
grievances. Haase never objected to the timeliness of Holly's compensatory time grievance,
was not filed until December 7, 2001, though Haase and Pawelkiewicz met in September of
resolve it. Haase knew that Holly and the Union intended to address her evaluation. Holly
in mid-January of 2002. Union representations met with Holly and Haase until they became
convinced that nothing was going to change. The grievance was dated March 7, 2002. The
grievance filed by Holly did not have written extensions to the time for filing because the
engaged in ongoing discussions. Until the date of the hearing, the District did not object to
grievance as untimely. Pawelkiewicz and Thompson testified that there has never been an
for timeliness of a grievance.
The Union asserts that arbitrators recognize that any doubt as to whether time limits
must be resolved in favor of the Grievant, especially where the employer fails to raise a
objection until the date of the hearing. The District waived any procedural objections by the
practice that exists in the processing of grievances when it failed to raise it until the date of
The District asserts that the Arbitrator lacks jurisdiction over this grievance because
grievance is untimely. Pursuant to the express provisions of Article VIII, Section B of the
bargaining agreement, the untimely grievance is deemed waived. Grievances are to be filed
10 contract days or 15 calendar days following the act or condition of the complaint. Step
one of the
grievance procedure expressly provides that if the employee does not submit the grievance in
within 10 contract days or 15 calendar days, whichever comes first, the grievance will be
waived. The Grievant did not file her grievance until March 7, 2002, which was 75
or 46 work days from the date she signed her evaluation on December 21, 2001. This is not
period of time between the time that the Grievant signed for her evaluation and the actual
the grievance. Haase gave the evaluation to the Grievant on December 14, 2001, and she
December 21, 2001. He had not granted any extension of time between December 21, 2001,
March 7, 2002.
The only extension of time limits is documented by the parties in a letter signed by
Pawelkiewicz dated March 18, 2002, extending the time for the District Administration to
to the grievance. Thompson testified that there was no agreement to extend the timelines as
initial filing of the grievance. In his eight years as superintendent, he noted that they were
meticulous about timelines. In several cases, the parties agreed to extend those timelines and
signed off on the extension. While Pawelkiewicz testified that each grievance is a continuing
grievance, that is not what the clear language of Article VIII, Section B, Step One of the
Arbitral case law is clear that failure to follow clearly established grievance timelines
result in a dismissal of the grievance. The District cites numerous cases including cases
Wisconsin. In this case, the untimeliness of the grievance was raised by Haase at Step Two
grievance procedure on April 17, 2002, in his written response. Additionally, in its written
denying the grievance, the School Board also restated that the basis for denying the grievance
that it was untimely. The parties have agreed through the negotiated labor agreement that an
arbitrator is without jurisdiction where the grievance is not timely filed.
Regarding the merits, the District contends that it complied with the bargaining
when it evaluated Holly. Article VII vests in management the right to evaluate and
teachers. Holly responded with an eight-page document. This case does not involve
a disciplinary matter. The Grievant received an evaluation with which she did not
responded in writing, and the response was attached to her evaluation. Her grievance alleges
evaluation contains statements which are unfair, inaccurate and exaggerated and alleges that
VII and VIII were violated.
The District argues that the Union would apparently have the Arbitrator rewrite the
of Article VII to require that members of the bargaining unit perform evaluations. While
of the bargaining unit testified on behalf of the Grievant and rendered their opinions
performance of the Grievant, the evaluation was not a peer evaluation. Management has the
exclusive right to evaluate and supervise teachers to improve the instructional program and
effective teacher by making teachers aware of their strengths and weaknesses.
The District asserts that the evaluation of employees is a function of management that
be challenged or overturned by an employee unless it can be demonstrated that the
were arbitrary and capricious. An employee's performance often concerns subjective matter
depending solely on personal analysis that can best be made by the employee's supervisor
and not a
third party. The Wisconsin Supreme Court has stated that an arbitrary or capricious decision
which is either so unreasonable as to be without a rational basis or the result of an
willful, and irrational choice of conduct. Therefore, Holly's evaluation of December, 2001,
stand unless she conclusively shows that the District's conclusion was arbitrary and
The thrust of Holly's grievance is that she disagrees with the evaluation. The
the Union both ignore the Administration's perceptions concerning the areas in which the
needed to improve. The evaluation is a cooperative effort working toward good, effective
instruction. Although a supervisor may not have exercised all his prerogatives in the best
deficiencies in his techniques of supervision do not violate the bargaining agreement.
Holly and Haase differed in their testimony about whether she stated in her evaluation
meeting with seniors to complete credit checks and meeting with juniors in small groups
high points. They also disagreed about the student that dropped a class and became a
runner. Holly complained that it was untrue that the student was assigned to be a guidance
runner in place of a course and that there was no quid pro quo. Haase was
referring to Holly's lack
of discretion in assigning the student to be a guidance office runner instead of getting an
Holly objected to the statement that she failed to follow up with a parent when instructed to
While she eventually held a meeting with the parent, a week transpired between the time the
asked Haase that contact be made and the meeting took place. The testimony shows that the
statement in the evaluation was true. In another incident regarding "poor follow up," Haase
student to see the guidance counselor first. The student told him four days later that she had
followed up with him. Holly followed up with the teacher instead of the student who was
to hear from her. Thus, the comment about the Grievant's follow up has a rational basis.
The District also notes the incident regarding freshman orientation. It was the
to kick off the orientation program for all of the mentors at noon that day. Zingler testified
was well aware that she was supposed to kick off the program, but Holly told her she had
lunch yet and she might be a little bit late getting into the auditorium. Holly also failed to
with Zingler, who asked Holly to come to her office at the end of the day to discuss plans
but she did
not. There was a rational basis for the comment in the evaluation that the Grievant's follow
not up to professional standards.
The District disputes Holly's claim that the statement regarding her poor preparation
meetings was untrue. Haase personally attended the ARC meeting in which he observed
unprepared. Zingler also testified that her preparation at ARC meetings was poor, that Holly
organized. Further, the District submits it has a rational basis for the evaluation that stated
did not consult with administrative staff and called the PSLO to take a student home. The
was to talk to another administrator to confirm the decision to send the student home.
While Haase suggested that Holly attend co-curricular activities, it was not
put the suggestion in the evaluation because he strongly encourages people to attend those
He is aware that he cannot require them to go. Regarding the comment about practicing
Haase testified that it would be better for Holly to have outside agencies working with a
that she could better spread her time performing services as a guidance counselor. He has
that she works with other counselors' students without informing them of the contact and has
gone against another counselor's opinion. Counselors Millard and Courtney came to Haase
numerous occasions about the Grievant. At least five staff members came to Haase stating
a hard time contacting Holly. The record shows that there was a rational basis for the
While the grievance alleges that he District violated Article VIII, A, of the collective
bargaining agreement, there is no evidence in the record showing that the District inequitably
to provisions of the bargaining agreement to her or that she had been treated unfairly or
What is shown through the record is that the Grievant appears not to like to take direction
Administration. The Grievant has been given a forthright evaluation from which she can
The evaluative comments were not arbitrary and capricious, but were predicated on a rational
and were not the result of an unconsidered, willful or irrational choice of conduct.
In Reply, the Union
The Union replies that in the event its position was unclear, its position is that when
supervisor makes an erroneous statement of fact in a performance evaluation, such statement
stricken or modified to conform to the facts that are proven to be accurate. The
false statements may be extremely serious, and the employee and the Union
cannot be required to postpone the test of accuracy until such time that they become
for a non-renewal based on alleged incompetent or inefficient performance. The Union
that enforcement of the grievance procedure's time lines has become lax at the high school,
management's conduct in a grievance involving the same parties immediately prior to this
constitutes waiver of the objection or presents circumstances sufficient to apply the principal
equitable estoppel. The Grievant and her Union representative were misled by the conduct
principal, and a contrary rule may derail good faith efforts to solve labor relations disputes.
While the District makes some global statements about performance evaluations, the
focus is on a finer scale. The facts in the evaluation will linger into the future and form the
potentially serious employment decisions. The Union points out the incident where Haase
Holly called the PSLO to take a student home without consulting with administrative staff.
Meanwhile, Watzka testified that Holly never called her. The issue rests on credibility
then testified that Watzka told him that she got a call to take a student home. So one witness
other did not testify accurately. While the Union does not wish to argue the credibility issue
it emphasizes the importance of a timely contest of disputed statements of fact found in a
evaluation. If the District should attempt to non-renew Holly's employment in January of
its premise rested in part on the inaccurate fact in the December, 2001, evaluation, Watzka
probably not remember the incident.
The Union submits that evaluative conclusions in the performance review cannot be
to the arbitrary and capricious standard. A fact is a fact. It is proven or not. None of the
-- just cause, beyond a reasonable doubt, clear and convincing, preponderance of the
make sense. It is also important for administrators to understand that they will be
accuracy when they recite facts in a performance evaluation. Get the facts wrong and the
The Union contends that the District waived its right to insist on compliance with the
contractual deadline for filing this grievance when its principal abandoned enforcement of the
with the same Grievant and the same Union on another grievance only weeks before the
circumstances giving rise to this grievance. As Pawelkiewicz testified, he filed about three
a year since 1985 and the Union follows a practice of trying to resolve disputes without filing
grievances. In 16 years, the District has never objected to the processing of a grievance on
grounds that it was untimely.
The other grievance involving Holly was for compensatory time not paid in
grievance was not filed until December -- at least 60 days after the Grievant and Union knew
should have known of the alleged breach of contract. The principal made no objection to its
timelines. The grievance involved the same players -- Holly, Haase, and Pawelkiewicz.
engaged in ongoing discussions to resolve the dispute, then settled on terms favorable to the
after the grievance was filed.
While Thompson testified about the District's general practice regarding timeliness,
Pawelkiewicz agreed that the District has not complained about the timeliness of a grievance.
Thompson implies that there was no occasion to complain. Pawelkiewicz implies that both
want a result on the merits and a process of complete discussion on the issues. The District
contradict Pawelkiewicz's testimony regarding the compensatory time grievance. Holly and
Pawelkiewicz had specific and immediate experience that told them that Haase would discuss
resolution of grievances, forego insistence on timely filing, and settle a case after a grievance
filed. The Union followed the same procedure as it had in the Holly compensatory time
If the District wanted to strictly follow the time limits in the second grievance, it was
Haase to notify Holly and Pawelkiewicz that if they were going to file a grievance, they
needed to do
so within the time limits set out by the contract.
In Reply, the Employer
The District takes issue with the Union's argument that the grievance was timely
according to an established practice in the District. Even if a practice existed, it cannot
the express language of the collective bargaining agreement. No such practice of processing
grievance even exists in the record.
As to the Union's comment of the alleged failure of Holly to notify the principal of
changes, the Union ignores the statement in the transcript that her only concern was that she
want people to believe she had dropped the student's class in exchange for the student
guidance runner. The Union contests the allegation that Holly failed to follow up with a
instructed by Haase. The operative word is "when" -- over a week transpired between the
foster parent called Haase asking that contact be made with the parent and the actual time the
was held. The parent called a second time stating Holly had not yet contacted her. The
left with the perception that the District was dropping the ball because no one had timely
The District finds the Union's comment regarding Holly's planning and preparation
meetings and freshman orientation contrary to the testimony of Haase and Zingler. The
that Union's argument lacks credulity that Holly did not know she was to kick off freshman
orientation, that it was more important for her to get a sandwich than to kick off the
that she did not know what she was to do in conducting orientation.
The burden is on the Union to prove that the evaluative comments were arbitrary and
capricious. The record shows a rationale for each of the evaluative comments.
This grievance is obviously untimely. Step One of the grievance procedure in the
bargaining agreement states:
Any employee within the bargaining unit may file a written
grievance with a representative of the
grievance committee of the collective bargaining agent within ten (10) contract days, or
calendar days, whichever comes first, following the act or condition of his/her complaint. A
the written grievance will be forwarded to the building principal and to the superintendent.
In the event of a grievance, a teacher shall
perform his/her assigned work task and grieve his/her
Only one subject matter will be covered in
any one grievance.
If the employee does not submit the
grievance in writing within then (10) contract days or fifteen
(15) calendar days, whichever comes first, following the act or condition of his/her
grievance will be deemed waived.
The Grievant's time to file a grievance started running in the middle of December of
either on December 14th when the Grievant was given the evaluation, or
December 21st when the
Grievant signed it. The District appears to accept the later date, and even then, the
filed 75 calendar days after December 21st, or 60 days late. While the
Union states that the District
did not object to the grievance as untimely until the date of the hearing, the record shows
#5) that Haase responded on April 17, 2002, that the grievance was not filed in a timely
Also, on May 29, 2002, the Board President responded in the denial notice that the grievance
untimely. Thus, the Union was not ambushed at the hearing with a timeliness objection, and
on notice from the earliest stage that the District considered the grievance to be untimely.
procedural objection was raised on two occasions well before the hearing in the matter.
The Union also asserts that there was an established practice in the District whereby
parties tried to informally resolve disputes before filing grievances. The record does not
practice that time lines have been regularly waived or not enforced. Pawelkiewicz
grievance to be ongoing or of a continuing nature. Arbitrator Seward in Bethlehem Steel
LA 76 (1953) defined a continuing violation as:
. . . there is a clear distinction between claims which arise from
single isolated events and those
which are based upon a continuing course of Company action. It would be one
thing to hold that
when a transaction has been completed a failure to process a claim concerning
that transaction within
the contractual time
limits properly bars its later consideration. It would be quite
another thing to hold that when the
Company has undertaken a permanent and continuing course of
conduct alleged to be in violation of
the Agreement a failure to process a grievance within 30 days would be a bar to all future
have t hat course of conduct corrected.
In another case involving the same company, Arbitrator Feinberg (20 LA 550, 1955)
explained that a continuing grievance is one where the act complained of may be said to be
from day to day, such as the failure to pay appropriate wage rates, but that a layoff even in
of seniority was not a continuing grievance. The purpose of the continuing/recurring
violation rule is to be able to make an equitable adjustment if a violation is found, that there
remedy and that the employer not be allowed to continue sheltering a violation which
time ago in a manner to erode the bargaining agreement. Grievances involving wages and
are the more classic examples of grievances considered to be of a continuing nature, as
violations remain unremedied each pay period.
This grievance has none of the hallmarks of a continuing grievance. The evaluation
single isolated event and not a continuing course of conduct. The source of the grievance
has a date
certain that is not repeated over and over. The Grievant should have known that her time
running when she received the evaluation. While Pawelkiewicz testified that the parties were
to resolve it, there was nothing to relieve the Union or the Grievant of the obligation to file a
grievance in a timely manner. It appears that the Union wants at least two kicks at the cat --
chance to resolve disputes before filing a grievance, and another chance through the
procedure if it does not resolve the dispute. And while it may be commendable for the
parties to try
to resolve disputes short of filing grievances, they must honor the time lines in the contract
unless they choose to mutually waive or extend them.
The Union claims that the practice of enforcing the grievance procedures' time lines
become lax at the high school. However, the testimony and record do not confirm that
Pawelkiewicz believes that there is more informality and discretion regarding the filing of a
and that the District has not complained about the timeliness of a grievance in the past.
Thompson was quite clear that the District had been meticulous about time lines, and in those
where the parties agreed to extend the time lines, they signed off on the extension. The
to bear out Thompson's assertion that extensions were granted in writing. The record does
that time lines are regularly disregarded or waived informally.
The only case that shows that the District acquiesced in granting an untimely
grievance is the
compensatory time grievance filed by this same Grievant. One case does not create any
The Union makes a good point that the same players were involved in an untimely
at the same time the evaluation came into being, and that the District settled that grievance
favorable to the Grievant even though the grievance was filed well after the time had run to
The Union argues that it was following the same procedure that it had in the compensatory
grievance, and that if the District wanted to enforce the time limits in the evaluation
grievance, it was
incumbent for Haase to notify the Grievant and Pawelkiewicz to adhere to the contract. I
There is no obligation on the part of the District to point out the time lines of the grievance
to the Union. The Union could not reasonably rely on the fact that one grievance was
still resolved in order to disregard the time lines in the second case, without mutual
agreement of a
waiver or extension. There is no history other than one single case, and it would be
the Union to believe that it could file a grievance 75 days later based on the late filing of one
The fact that the parties agreed in writing -- sometime between December 7 and 18, as well
December 21, 2001 -- to extend the time lines of the compensatory grievance shows
that the Union
should have been alerted to the necessity of getting an extension for the evaluation grievance
writing. At the very time that the time started to run on the second grievance, the Union
agreeing in writing to extend time lines on the other grievance. Thus, the District did
induce the Union into believing that it could ignore time lines of the grievance procedure.
District made no statement to mislead the Union or the Grievant.
Based on the above and the record as a whole, I find that the grievance is untimely
The grievance is untimely and is denied and dismissed.
Dated at Elkhorn, Wisconsin this 26th day of March, 2003.
Karen J. Mawhinney, Arbitrator