BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
WASHBURN EDUCATION ASSOCIATION
WASHBURN SCHOOL DISTRICT
(Jean Fenner Grievance)
Mr. Barry Delaney, Executive Director, Northern Tier UniServ
West, appearing on behalf of the
Washburn Education Association.
Weld, Riley, Prenn & Ricci, S.C., by Attorney Kathryn J.
Prenn, appearing on behalf of the
Washburn School District.
At all times pertinent hereto, the Washburn Education Association (herein the Union)
Washburn School District (herein the District) were parties to a collective bargaining
covering the period July 1, 2001 to June 30, 2003, and providing for binding arbitration of
disputes between the parties. On May 28, 2002, the Union filed a request with the
Employment Relations Commission (WERC) to initiate grievance arbitration on the grievance
Fenner (herein the Grievant) concerning a letter placed in her personnel file by the District
Administrator, and requested the appointment of a member of the WERC staff to arbitrate
The undersigned was designated to hear the dispute and a hearing was conducted on
2002. The proceedings were not transcribed. The parties filed briefs on November 5, 2002.
Union filed a reply brief on November 25, 2002, and the District filed a reply on December
whereupon the record was closed.
The parties were unable to stipulate to the framing of the issues. The Union would
issues as follows:
Did the District violate the collective bargaining agreement by
issuing the January 28, 2002
letter addressed to Jean Fenner and placing a copy in her file?
If so, what is the appropriate remedy?
The District would frame the issues as follows:
Did the District violate the collective bargaining agreement
when Principal Hamm drafted a
summary of a conference he had with an employee and placed a copy of the conference
the employee's personnel file after having provided the employee a copy of the summary?
If not, what is the appropriate remedy?
The Arbitrator is of the view that the Union's proposal adequately articulates the
issues in the
case and adopts the same.
(RESERVATION OF RIGHTS)
A. The Board of Education, on
its own behalf, hereby retains and reserves unto itself, without
limitation, all powers, rights, authority, duties and responsibilities conferred upon and vested
in it by applicable law, rules and regulations to establish the framework of school policies
projects including, but without limitation because of enumeration, the right:
1. To the executive
administrative control of the school system and its
properties, programs and facilities, and the activities of its employees relative to school
2. To employ and
re-employ all personnel and. subject to the provisions of law or State
Department of Public Instruction regulations, determine their qualifications and conditions
of employment, or their dismissal or demotion, their promotion and their work assignment
subject to this Master Agreement;
3. To establish and
supervise the program of instruction and to make the necessary
assignments for all programs of an extra-curricular nature that, in the opinion of the
Board, benefit students;
4. To determine means and
instruction, selection of textbooks and other teaching
materials, the use of teaching aids, class schedules, hours of instruction, length of school
year, and terms and conditions of employment.
The exercises of the foregoing powers,
rights authority, duties and responsibilities by the Board,
the adoption of policies, rules, regulations and practices in furtherance thereof, and the use
judgment and discretion in connection therewith shall be limited only by the specific and
o£ this Agreement and Wisconsin Statutes; Sec. 111.70, and then only the extent such
express terms hereof are in conformance with the Constitution and lags of the State of
and the Constitution and laws of the United States.
B. The Board recognizes its
obligations pursuant to Section 111.70 to bargaining with the Union
regarding the decision and/or the impact of a decision to contract out for fiber optic and/or
telecommunications programs prior to the District's implementation when such programs
would have an impact on bargaining unit members. The District will notify the union's
President and the Unions Negotiations Chairperson of any District decision for the purpose
of allowing a reasonable amount of time for negotiations. Any such negotiations would be
subject to the impasse procedure of State Statute 111.70 if an impasse is reached.
(CONDITIONS OF EMPLOYMENT)
. . .
YEAR AND SCHOOL DAY
The school contract year for teachers shall
be 186 days as per the school calendar of which
180 days will be student days, the remaining six (6) days will be inservice days and parent
teacher conferences. All weather/emergency days will be made up without students. It is
understanding that if the District does not meet the time required for the purposes of meeting
full state aid that time will be made up. The chronological sequence of the school year shall
be determined by the Administration, as negotiated with the Washburn Education Association
and approval of the Board. The regular work day for teachers involved in the after-school
program shall be established by the District.
At the start of the school year, individual
teachers shall have the option to select a regular
working schedule of working 7:30 a.m. to 3:30 p.m. or
8:00 a.m. to 4:00 p.m. provided they do not have any
meetings or other professional
responsibilities scheduled between 3:30 p.m. and 4:00 p.m. If the individual teacher needs
to change his scheduled work time, the administration will be notified prior to the change in
a timely fashion.
The Board of Education shall make an
effort to provide preparation time for each teacher.
The assignment of teachers for duties
outside the above mentioned daily hours and/or the
working day calendar within this Agreement shall be done on a voluntary basis.
. . .
E. Rules and regulations
governing employee activities and conduct shall be interpreted and
. . .
The Grievant is a Middle School teacher who, at the time of hearing, had been
the District for eight years. She is certified as a K-8 teacher and over the years has been a
teacher in the Elementary School and has taught 6th grade English and
7th grade Social Studies and
Science in the Middle School. In the 2001-2002 school year, the Grievant was assigned to
grade Science in the Middle School.
Early in 2002, Middle School Principal Mitch Hamm was approached by a parent of
the Grievant's students concerning problems the child was having in the Grievant's class.
had previously spoken with the Grievant, but was dissatisfied with the result of the
January 22, 2002, Principal Hamm met with the Grievant to discuss job performance issues
the meeting with the parent, specifically timely evaluation of student work and the need to
exams with students. At the meeting, Hamm also addressed the issue of objective evaluation
student work. On January 28, 2002, Hamm drafted the following memo, summarizing the
22 meeting, a placed it in the Grievant's personnel file:
. . .
You will recall that on January 22, 2002,
you and I had a conference concerning aspects of your
performance as a teacher. During this conference we discussed these topics.
1. Evaluation of student work in a timely manner.
2. The need to review exams with
students after they have been evaluated.
3. Objective evaluation of student
First, we discussed evaluation of student
work in a timely manner. You mentioned to me that
over the last semester, there had been times when you got behind and were unable to keep up
grading student assignments. As we discussed, it is very important for student work to be
and returned within a few days. Students need feedback to understand how they are doing in
and more importantly how they have performed relative to the particular learning objectives.
students have not performed at an acceptable level they need to be aware and provided
opportunities to learn the objectives in a timely manner. The more time that lapses, the
it is for students to learn the objectives needed to move on. In addition, if students fail to
important concepts, they may have a difficult time moving on in the curriculum. It is my
that student assignments are evaluated and returned in a timely manner (3 to 5 days). In
students should be provided additional opportunities to to [sic] learn important concepts that
Second, we discussed the need to hand back
and review student exams after they have been
evaluated. In our discussion of this topic you stated that your students did not get any of
back to review the entire semester. The only exception would be if an individual student
asked to see
their exam. As I mentioned in our meeting, this is poor educational practice. As stated
above, it is
important for students to receive timely feedback and be provided the opportunity to learn
concepts that they may have missed. In addition to providing students with feedback, student
should also be used by the teacher to assess how the class or classes as a whole are
example, if a large percentage of the students score poorly on a particular portion of the
should put up a red flag for the teacher. Further investigation may reveal that the test
poorly written question, or that the instruction provided did not adequately address the
the particular objective or concept. Reviewing exams with the class may be helpful in
why students did not perform well on a particular portion of an exam. In the future, you
expected to evaluate and return student exams in a timely manner.
Third, we discussed the objective evaluation
of student work. You mentioned that essay type
questions are incorporated in your exams. These kinds of questions can be subjective in
however, as we discussed using a rubric will allow evaluation to be more objective. For
consider an essay question that requires students to describe how the ear functions. If there
steps required for the ear to distinguish sound, then student explanations of
these four steps should be used to assess the question.
Developing a rubric for each essay
question will help to keep subjectivity to a minimum. It is also important that students
what is expected in their response and how it has been assessed. Through our discussion, I
determined that you are using rubrics to evaluate essay type questions. It is expected that in
future you will review exams with students and provide them with the specific criteria used
evaluate their responses.
I appreciate your cooperative attitude
concerning the correction of these matters. If I can be of
assistance in helping you improve this area of your teaching please do not hesitate to let me
I will be looking for and recommending that you attend a professional development
the area of evaluation.
I have received a copy of this
memorandum. I understand that my signature does not necessarily
constitute agreement with its contents and that I have an opportunity to respond if I disagree.
. . .
Hamm gave the Grievant a copy of the memo and told her that she could file a rebuttal
if she wished,
although he did not advise the Grievant that the memo would be placed in her personnel file.
On February 6, 2002, Hamm met with the Grievant and Union President Sandy
discuss the Grievant's concerns over the January 28 memo. On February 7, Raspotnik sent a
summary of the February 6 meeting to the Grievant and Hamm for review. Hamm did not
the proposed changes in the January 28 memo and did not include the draft in the Grievant's
personnel file. On March 11, 2002, the Grievant filed a rebuttal to the January 28 memo,
included in her personnel file, as follows:
This letter is in response to the disciplinary letter given to me on
January 28th. The following
points were raised in your letter:
*Evaluation of student work in a timely
*The need to review exams with students
after they have been evaluated.
*Objective evaluation of student work.
Your letter implies I don't evaluate and review work in a timely
manner. In order to do fair
evaluations of detailed work, it is not unreasonable to take the extra time needed. Every
made to return work in a timely manner. Short tests and assignments typically are returned
a week. However,
longer assignments requiring extended periods of time to prepare
by the students deserve careful
evaluation. A prescribed time limit defining "timely manner" does not apply. Timely
manner is what
is appropriate for the assignment. As a professional, I currently feel I make every
to return work within a reasonable time frame and have always done so.
. I [sic] have a 45-minute prep period each day in which to
prepare lessons and labs in a new
curriculum in science for two grade levels, and grade the work assigned. Extra time is
taken out of personal time both before and after school to accomplish these tasks. Students
given many other opportunities for timely evaluations in the form of frequent labs,
graded homework or daily assignments.
The second paragraph contains discrepancies
between what I said and what you wrote. My
students did receive their tests after they were all taken and the grading had been completed.
review, I collected the papers again and saved them, along with other work, for students to
compiling a mid-year portfolio. Collecting tests is a common practice among teachers at this
It preserves the work for further evaluation. It also prevents the sharing of tests between
who took the test and other students who have not yet taken the test. If a review is missed
a student being absent when the review took place, students may make an appointment to see
I do not disagree with the statements
outlining the theory behind the use of tests to evaluate
student progress or unmastered content. I believe I currently use tests to evaluate the
concepts by the grade as a whole. I reviewed concepts many times based on the test results
misconceptions were clarified. The inclusion of these statements in the context of this
implies I am not fulfilling this basic responsibility as a teacher. I strongly protest this
The third paragraph explains the necessity
of rubrics to more objectively grade essay answers.
Essay questions have been a part of my tests, both text-generated and teacher-generated, all
I have taught in this middle school. I have always used a rubric to evaluate these answers.
the review process, I tell students what the main points of an acceptable answer would be. I
feel I am deficient in this area. I also develop rubrics to evaluate research papers, oral
and portfolios, just to name a few assignments that require rubrics for more objective
Such a rubric was posted in my room concerning the portfolios for the entire duration of the
The original letter was inaccurate in many
points. Lettersto the file are considered a disciplinary
action. I protest a letter with this tone being inserted
into my personnel file. I also take issue with the process that led
to this letter. The relationship
between a principal and teacher is partially one of mentoring. During a mentoring meeting,
are discussed and possible solutions are considered. The typical follow up to such a meeting
also be a mentoring situation where the progress is evaluated. This letter circumvents this
The existence of this letter is disciplinary in nature. The placement of this letter in my file is
disciplinary action. The trust between the supervisor and employee has been broken.
be said in mentoring conversations could now end up in a letteras part of a
disciplinary action. If
there is a problem, I expect my supervisor to work with me to rectify the issue and my
failure to make
steps toward solving the problem would be grounds for a disciplinary action.
. . .
Also on March 11, the Union filed a grievance concerning the January 28 memo. The
characterized the January 28 memo as a letter of reprimand, which allegedly violated the
due process rights, inasmuch as the complaining parent was not identified. The grievance
objected to Hamm's stated performance criteria as being in violation of several provisions of
contract and further alleged that, under the circumstances, issuing the memo to the Grievant
allowing her to rectify the stated problems was a further contract violation. The Union
the January 28 memo and any other reference to the matter be expunged from the Grievant's
personnel file. Hamm denied the grievance and the matter proceeded to arbitration through
contractual steps of the grievance procedure. Additional facts will be referenced, as
necessary, in the
discussion section of the award.
POSITIONS OF THE PARTIES
The District denies that it took disciplinary action against the Grievant. At no time
Principal Hamm suggest, either orally or in writing, that the Grievant was being disciplined
reprimanded. Placing the memo in her record was an effort to memorialize their
there is no other appropriate place for such documents to be placed, but the Union insists
maintaining such a written record is automatically a form of discipline. In fact, having
denied on the
record that the memo was disciplinary, the District could not in the future recant and say that
Other arbitrators have ruled that similar documents placed in personnel files do not
automatically constitute discipline [Cf; School District of Webster, WERC Case 29,
MA-9656 (Crowley, 6/6/97); Northland Pines School District, WERC Dec. No. 29978-A
(Jones, 5/2/01)]. The exhibits in the record clearly demonstrate that there
is a distinction between a reprimand and a conference summary. Using the Union's
discipline all of the Grievant's performance evaluations would constitute discipline. The
merely a recitation of Hamm's performance expectations, which is a requirement under the
standard, should it become necessary to impose discipline at some point in the future.
Pines School District, WERC Dec. No. 30267-A (Shaw, 7/8/02). The District's only
to help the Grievant improve her performance level.
The District did not violate any other contract provisions. The grievance references
violations of Article VI, Section E, Article VI, Section F, Article X, Section B,
Article XI, Section
E and Article XVII, Section E. Article VI, Section E, does not apply because it is the layoff
procedure and the Grievant was not laid off. Article VI, Section F, does not apply because
with suspension and the Grievant was not suspended. Article X, Section B, deals with
workload. By her own admission, and as supported by the exhibits, the Grievant does not
greater workload than the other teachers, so this provision doesn't apply. Article XI, Section
addresses assignment of voluntary duties outside the workday. The Grievant's teaching
responsibilities are not voluntary, nor are they extra duties assigned outside the regular
Article XVII, Section E, does not apply because there is no evidence that the work
contained in Hamm's memo differ from the expectations placed on other faculty members.
To order removal of the memo from the Grievant's file would exceed the Arbitrator's
authority. It has been established that the memo is not disciplinary. The Union merely
eliminate any record of the January 22, 2002 conference between Hamm and the Grievant.
no contractual or statutory authority for the arbitrator to order this remedy, therefore the
must be dismissed.
It is a recognized principle of contract interpretation that clear and unambiguous
language must be applied according to its terms despite the equities on either side. Elkouri
Elkouri, How Arbitration Works, p. 365, 4th Edition (1985).
Article XVII (E) and Article XI (E) are
clear on their face and must be applied accordingly.
Article XVII (E) requires that rules and regulations be applied uniformly. Principal
directed the Grievant to evaluate and return student exams in a timely manner, which he
would be with 3-5 days. None of the Grievant's previous performance evaluations mention
frame or refer to any problem with the Grievant's timeliness in returning student work.
testified that there is no District policy requiring the return of work within 3-5 days and that
possible that other middle school teachers do not do so. The Grievant testified that the
never been directed to return student work within 3-5 days. This was supported by high
teacher James Kouba, who indicated that his average turnaround time is 5-10 days. Clearly,
day rule is one applied specifically to the Grievant and, as such, is a clear violation of
Hamm's directive also required the Grievant to provide the students with the specific
used to evaluate their responses as a way of addressing student concerns over not knowing
were being evaluated on essays. To correct the problem, the Grievant was expected to
students in advance with the points of a specific rubric to prepare for exams. Again Hamm
and the Grievant confirmed, that there is no District policy requiring the provision of rubrics
students prior to exams, nor has the faculty, as a whole, ever been given such a directive.
is a case where a rule was created for, and applied to, the Grievant alone, in violation of
Hamm's directive also required the Grievant to return student assignments within 3-5
The Grievant's evaluations do not mention problems with turnaround time on student
In fact, Hamm acted in response to a complaint from the parent of one student out of 150.
this is a rule that has never been codified in the District or disseminated generally to the
was applied specifically to the Grievant, in violation of Article XVII (E).
Article XI (E) establishes an 8-hour workday and specifies that any duties assigned
the regular workday shall be done voluntarily. In 2001-2002, the Grievant was involuntarily
to teach 7th and 8th grade Science, even though she had
not taught 8th grade Science before. In
addition, she was required to adopt a new curriculum, which incorporated much more lab
a commensurate increase in the Grievant's workload. This increased her needed preparation
as well as the time necessary to correct assignments and exams. She testified to needing
of prep time each day, or 7½ hours per week, although the school schedule only
provides her with
5¾ hours of prep time during the regular workday each week. In addition to
conducting an average
of 3-4 labs per week, the Grievant gives exams approximately every two weeks. Assuming
corrects 3 lab reports per week for each of her 150 students at 3 minutes average to correct
report, this requires 22½ hours per week. Assuming she also gives an exam to half her
each week and spends 10 minutes correcting each one, this would require an additional
for a total of 35 hours spent grading student work. Subtracting her prep time, this requires
hours outside the regular workday each week, in addition to time spent in class preparation,
to comply with Principal Hamm's directive that student work should be returned within 3-5
Hamm's directive involuntarily mandates that the Grievant work outside the regular 8-hour
as such, violates Article XI (E).
The District in Reply
The Union's brief reveals that it concedes that Principal Hamm's January 28, 2002
not disciplinary, but continues to erroneously press its argument that the memo should be
from the Grievant's personnel file. The District did not apply rules or regulations
respect to the Grievant, and so did not violate Article XVII (E). In their January 22
Grievant admitted that she did not always grade
assignments or return exams in a timely manner. Hamm, in response, merely
expectation that she do so and established parameters for what his expectations were. The
expectations were not unique to the Grievant, because Hamm had previously discussed them
faculty meetings. He had not had occasion to speak to other teachers individually on the
because the problem had not arisen before. The Grievant admitted that Hamm's expectations
not unreasonable and further stated her expectation that if problems arose the Principal would
with her to rectify them. This is essentially what Hamm did in the January 22 meeting and
As with the timeliness of grading assignments and returning exams, Hamm also
assist the Grievant with respect to properly informing students regarding the rubrics used to
exam answers. It is not disputed that the Grievant used rubrics, only that she didn't
them sufficiently to the students. This expectation was communicated by Hamm and there is
evidence that the same expectation does not apply to the rest of the middle school faculty.
the District asserts that an articulated "expectation" is not the same as a rule or regulation
therefore, Article XVII (E) does not apply to this case. Rather, this is merely a case of a
failing to employ sound educational practices and her supervisor intervening in order to assist
doing her job better to avoid further complaints in the future.
Article XI (E) also does not apply. The Grievant's teaching responsibilities are
voluntary nor additional duties assigned outside the regular workday. Timely feedback on
work is part of her teaching responsibilities and applies equally to all the middle school
all have the same number of students. The Grievant did have to deal with a curriculum
2001-2002, but so did many other teachers and she was offered in-service opportunities to
make the transition. It is also not unusual for all the teachers to spend extra time outside the
day doing schoolwork, as the Grievant herself acknowledged. Also, Hamm did not assign
duties outside the workday, he merely reiterated what expects to occur in the classroom,
which is the
timely return and review of assignments and tests.
Finally, the requested remedy removal of the memo from the Grievant's file
Arbitrator's authority. There has been no violation of the contract and there is no
provision that requires removal of a supervisory letter from an employee's personnel file.
actions were within the purview of management rights and were consistent with sound
practices. Therefore, the grievance should be dismissed.
The Union in Reply
With respect to the subject matter taught, the Grievant has a heavier workload than
faculty. This is because the curriculum requires much more preparation and generates many
daily assignments than that used in the past. Article XI (E) states that: "The Board
of Education shall make an effort to provide preparation time for each teacher."
establishes that the preparation time given the Grievant is wholly inadequate for her to
all her work within the regular workday. Hamm's 3-5 day requirement for evaluating and
classwork and exams is impossible to achieve without working outside the school day. As
is an involuntary assignment of duties outside the workday in violation of Article XI (E).
The Union disputes that Hamm has relayed his timeliness expectations at faculty
but notes that he admitted that there are no written policies or rules within the District
any kind of standard for timeliness in returning assignments or exams. He further admitted
has never discussed his expectations with other teachers because there had never been
complaints. The grievance should be sustained.
The grievance filed by the Union challenges the January 28, 2002 memorandum on
essential grounds. First, the Union asserts that the memo constitutes a letter of reprimand,
issued in violation of the Grievant's due process rights. Second, the Union argues that the
expectations set forth in the memo are unreasonable considering the Grievant's workload and
require her to work outside the regular workday in order to achieve Principal Hamm's
violation of Article XI (E). Third, the Union contends that by reducing his expectations of
Grievant to writing and placing it in her personnel file, the Principal acted selectively and
Grievant's right to uniform treatment under Article XVII (E). As a proposed remedy, the
requests removal of the January 28 memo and any other reference to the situation leading up
from the Grievant's personnel file.
For a number of reasons, I do not consider the January 28 memo to be a letter of
In the first place, the document nowhere makes any reference to disciplinary action. In the
place, in the District's Step II response the District Administrator expressly stated that the
not a reprimand and offered to provide a written attachment to that effect. The memo
a conference between the Principal and the Grievant regarding certain of her evaluation
The Principal notes that some of the Grievant's methods do not meet the standards he expects
his faculty and he proceeds to enunciate those standards with the expectation that in the
Grievant will improve in those areas. The fact that Hamm's comments are evaluative, and
perhaps critical, in nature, however, does not make the memo disciplinary. Nor does the
fact that the
memo was placed in the Grievant's personnel file give it a disciplinary effect.
In Northland Pines School District, WERC Dec. No. 30267-A (Shaw, 7/8/02),
Examiner David Shaw made the following observation:
An employer is, however, entitled to place an employee on notice
that it views certain conduct
as unacceptable; indeed, such prior notice is normally required under the "cause" standard. It
appropriate to include such a notice in the employee's personnel file.
In this case, Hamm considered some of the Grievant's evaluation methods and
practices to be below
the standards he expects from the middle school faculty, which he communicated to her in
22 conference. He advised her of his expectations and made suggestions for ways to
memorialized the substance of the conference in the January 28 memo for future reference
evaluating her progress or in the event that there were future complaints. Thus far, his
within the parameters of legitimate supervisory methods. The record establishes that all
records are maintained in one personnel file. Thus, the memo was placed in the Grievant's
because there was no other alternative, other than destroying it, which would have greatly
usefulness as a benchmark or evaluative tool. The memo makes no reference whatever to
and, to the extent that the Grievant may have felt it was slanted she was permitted to submit
rebuttal, which she did and which was also included in the file. The District disclaimed in
on the record that the memo had any disciplinary character, thus waiving any ability to argue
otherwise in the future. In my view, therefore, the memo was not a reprimand.
The Union's second contention is that Hamm's evaluation expectations are
considering the Grievant's circumstances and require her to work outside the regular
violation of Article XI (E). I disagree. Article XI (E) establishes a regular 8-hour workday
a.m. to 3:30 p.m. or from 8:00 a.m. to 4:00 p.m., at the individual teacher's option. It also
that the ". . . Board of Education shall make an effort to provide preparation
time for each teacher."
(Emphasis added) Finally, it makes the assignment of duties outside the school day or school
voluntary. The Grievant testified that the new science curriculum adopted in 2001-2002
more preparation time because she wasn't used to it and that the increased number of labs
much more daily work that had to be corrected. She acknowledged, however, that any
realistically expect to work outside the school day in order to get their work done and that
routinely does so, as do other teachers in the District. She also testified that the 3-5
returning schoolwork set forth by Hamm is not unreasonable. The Union's argument appears
however, that imposing such a standard in effect mandates working outside
the school day, which
it sees as impermissible.
The issue, as I see it, however, is not whether teachers may be expected to work
school day -- Hamm did not order or assign the Grievant to any involuntary duties outside
workday. The issue, rather, is what the School District is entitled to expect from its
teachers. It is
the District's responsibility to provide a school system for its students that provides them
education that comports with the standards established by the Department of Public
employs professional staff to perform the function of educating the students and employs
administrators to operate the District's schools and
supervise the activities of the District's staff and students. Thus, under Article VIII, it
itself the administrative control of the school system, which includes such things as:
activities of its employees relative to school functions, determining the conditions of
its employees, establishing and supervising the program of instruction, establishing the
determining the means and methods of instruction. In my view, these powers include the
expect, and insist, that the students' progress be evaluated regularly and promptly, in order
help them to succeed. Thus, Hamm was within his authority to tell the Grievant that he
to grade and return daily work and exams within a reasonable time and there
is no evidence that the
3-5 day benchmark he chose was unreasonable. This may mean the Grievant will need to do
outside of school hours, but not because she was assigned to do it involuntarily. Rather,
job requires it in order to educate the students effectively. The Grievant acknowledged this
testified that, as a practical matter, no teacher can expect to accomplish all their work within
confines of the regular school day. Preparation and evaluation are extensions of the
occurs in the classroom, not separable additional duties that may be distinguished from the
itself, and the fact that they sometimes must occur outside of school does not constitute an
involuntary assignment of duties in violation of Article XI (E).
Finally, the Grievant argues that by placing the January 28 memo in her file, the
violated Article XVII (E) because it treated her differently from other faculty members.
the Union argues that the 3-5 day expectation for returning assignments and exams and the
requirement that the Grievant provide the students with rubrics prior to exams, as set out in
January 28 memo, are unique to the grievant and are not general rules and policies applied to
faculty as a whole. Again I cannot concur.
Hamm met with the Grievant on January 22 in response to a parent complaint.
course of the meeting, he identified certain of the Grievant's evaluation methods which
concern. In response, he advised the Grievant of his expectations, offered suggestions for
improvement, and followed-up by summarizing the content of the meeting in the January 28
Hamm testified that this was a unique situation and that he had not in the past had to address
concerns with any other faculty member. The basis for a violation of Article XVII (E) is
same rules and regulations be applied differently to different people under the same or
circumstances. In the first place, this is not a matter of rules or regulations; it was a
practices and expectations. Had it been otherwise, one would have expected the January 28
to incorporate some mechanism for oversight and assessment to assure future compliance, but
was none. In the second place, there is no basis for comparison because the situation had
before. Had there been evidence that other parent complaints are ignored or that other
held to looser standards, the situation might be different, but such is not the case. Faced
with a new
situation, Hamm responded reasonably within the scope of his authority and did not violate
For the foregoing reasons and based upon the record as a whole, I hereby enter the
The District did not violate the collective bargaining agreement by issuing the
2002 letter addressed to Jean Fenner and placing a copy in her file. The grievance is
Dated at Fond du Lac, Wisconsin, this 17th day of April, 2003.
John R. Emery, Arbitrator