AMERICAN ARBITRATION ASSOCIATION

CASE NO. 11 390 02377 09



In the Matter of Arbitration     )

)

Between          )

     )

SPRINGFIELD EDUCATION ASSOCIATION  )

MTA/NEA         )

    )OPINION 

and)   

)

SPRINGFIELD SCHOOL COMMITTEE)

)

Xxxxx, Grievant________)

APPEARANCES


For the Union:                 For the Employer:


William H. Shaevel, Esq.           Melissa M. Shea, Esq.

Shaevel & KremsSullivan, Hayes & Quinn

141 Tremont StreetOne Monarch Place, Suite 1200

Boston, MA  02111Springfield, MA 01144

(617)556-0244(413) 736-4538




INTRODUCTION


     The arbitration arose pursuant to the Collective Bargaining Agreement (“CBA”) entered into evidence as Joint Exhibit(JX)1.)  The CBA was in effect from July 1, 2005 to June 30, 2007 and July 1, 2007 to June 30, 2010 between the Springfield School Committee (the “Employer”) and the Springfield Education Association (the “Association”).

The Grievant, Xxxxx (“Grievant”) was an Adjustment Counselor at the SAFE Springfield Academy Middle School for the academic years 2007-2008 and 2008-2009.  She was on non-professional teacher status. An employee obtains professional teacher status (“PTS”) after three years in the job.

On May 14, 2009, the Employer issued a Final Evaluation (JX-6) that served as a non-renewal notice to Grievant.  The matter could not be resolved through the grievance procedure, and the Association filed for arbitration (JX-4A).

The matter in dispute was heard on June 9, 15, and 16, 2010 before Arbitrator Karen G. Andres, at the offices of Sullivan, Hayes & Quinn, One Monarch Place, Springfield, Massachusetts.

     The Parties elected to submit closing briefs following the hearing.  With submission of the briefs, the record was closed.



II.ISSUE

    

The issue as defined by the Parties is as follows:

Did the Springfield Public Schools violate the Collective Bargaining Agreement in the manner and procedure in which it evaluated Grievant Xxxxx leading to her non-renewal in May 2009?


          If so, what shall be the appropriate remedy?


RELEVANT CBA PROVISIONS


Article 2 COMMITTEE RIGHTS, p. 3

“The Committee is a public body established under, and with powers provided by, the statutes of the Commonwealth of Massachusetts, and nothing in this Agreement shall derogate from the powers and responsibilities of the Committee and the Superintendent under the statutes of the Commonwealth or the rules and regulations of the agencies of the Commonwealth.


“Except as otherwise provided in this Agreement, the Committee and the Superintendent retains all powers, rights, duties and authority which it had prior to entering into this Agreement.  The exercise of said powers, rights, duties and authority shall not be subject to the Grievance Procedure and/or Arbitration.”



Article 5 WORKING CONDITIONS p. 8

H.Termination of Employment

“… Notice of non-renewal of teachers, without professional status, shall occur no later than May 15th.”


Article 8  SPECIAL SERVICES

School Adjustment Counselors

“1. The parties agree that the duties of the School Adjustment Counselor are those outlined in Appendix J.


“2.The parties agree that the qualifications of the School Adjustment Counselor are those required by the State Department of Education as outlined in VIII-1 of the Rules and Regulations of the Springfield School Committee.”


Article 21 EVALUATION, PERSONNEL ACTION, AND PERSONNEL FILES, p. 50

A.Evaluation of Teachers

“New evaluation model to be negotiated and settled by January 2007 and implemented 2007-2008.  The new evaluation instrument, forms, and documents (the Springfield Public Schools Teacher Evaluation and Development System) will be jointly printed and provided to all SEA members and requisite evaluators.  The Association and the District shall provide joint training for administrators and SEA members.”



Article 32 GRIEVANCE PROCEDURE, p. 77 – 80

C.Step 4 - Arbitration, p. 80


“¶3:The arbitrator shall issue his award not later than thirty (30) days from the date of the close of the hearings or, if oral hearing has been waived, then from the date of transmitting the final statements and proofs to the arbitrator.  The arbitrator’s award shall be in writing and shall set forth the arbitrator’s opinion and conclusion on the issues submitted.


¶4:The arbitrator shall have no power or authority to make any award which requires the commission of any act prohibited by law or which is inconsistent with the provisions of this Agreement.


¶5:The decision of the arbitrator shall be binding upon the School Committee, the Association, and the aggrieved teacher.”


Appendix E – EVALUATIONS, (Article 21), p. 109

“Agreed upon Evaluation Process is a separate document entitled ’Springfield Public Schools Teacher Evaluation and Development System’”


Appendix J – SCHOOL ADJUSTMENT COUNSELOR, p. 114

   Statement of Duties 1-6.






RELEVANT STATUTES




M.G.L. c. 71 § 41. Tenure of teachers and superintendents; persons entitled to professional teacher status; dismissal; review


“For the purposes of this section, a teacher, school librarian, school adjustment counselor, school nurse, school social worker or school psychologist who has served in the public schools of a school district for the three previous consecutive school years shall be considered a teacher, and shall be entitled to professional teacher status as provided in section forty-two. The superintendent of said district, upon the recommendation of the principal, may award such status to any teacher who has served in the principal's school for not less than one year or to a teacher who has obtained such status in any other public school district in the commonwealth. A teacher without professional teacher status shall be notified in writing on or before June fifteenth whenever such person is not to be employed for the following school year. Unless such notice is given as herein provided, a teacher without such status shall be deemed to be appointed for the following school year…” 


M.G.L. c. 71, § 42.  Discharge of Teachers or Other Employees of the School District.

“….A teacher who has been teaching in a school system for at least ninety calendar days shall not be dismissed unless he has been furnished with written notice of intent to dismiss and with an explanation of the grounds for the dismissal in sufficient detail to permit the teacher to respond and documents relating to the grounds for dismissal, and, if he so requests, has been given a reasonable opportunity within ten school days after receiving such written notice to review the decision with the principal or superintendent, as the case may be, and to present information pertaining to the basis for the decision and to the teacher's status. The teacher receiving such notice may be represented by an attorney or other representative at such a meeting with the principal or superintendent. Teachers without professional teacher status shall otherwise be deemed employees at will….”




IV. THE ASSOCIATION'S CONTENTIONS

      

The Association contends that the Employer failed to comply with mandated procedures outlined in the CBA’s Evaluation and Development System.  Therefore Grievant should be reinstated for an additional school year so that she can be properly evaluated and observed. 

The Association identifies nine elements of the Employer’s failure to comply. 

Failure to conduct the 3 observations required for an employee being non-renewed and for someone on a Professional Improvement Plan (PIP);


Failure to provide and explain observation and evaluation instruments before observation; 


Failure to explain weaknesses;


Failure to give specific, observable and measurable recommendations, suggestions, examples and opportunities for improvement;


Failure to give feedback on progress or provide sufficient opportunity for Grievant to give the evaluator additional information on her performance;


Failure to give an indicator on how improvements will be measured;


Failure to provide the best possible resources by preventing Grievant from taking a District Professional Development Course;


Failure to recognize areas of strength; and


Use of a Counselor ‘rubric’ in the evaluation process which had not yet been negotiated and approved by the Association through collective bargaining process.



V. THE EMPLOYER'S CONTENTIONS


The Employer contends that a teacher with non-PTS is considered to be an “at will” employee not entitled to statutory protections such as “just cause.”  Additionally, the matter does not involve discipline or discharge.  Rather, the matter involves only whether evaluation procedures were followed.  Therefore, Grievant bears the burden of establishing a violation of the CBA.

There was no substantial violation of the CBA evaluation procedures in connection with the decision not to reappoint Grievant.  Grievant was evaluated and observed three times during her employment.  In addition, Assistant Principal and Supervisor Rhonda Jacobs evaluated Grievant informally through walk-bys and walk-throughs and formally through observations and formal evaluations.

The STEDS did not intend that a teacher on a PIP must be observed three times within one year or during the duration of the PIP. 

“’…Not all violations of a teacher’s rights…will justify reinstatement…. The arbitrator might direct merely that the omitted procedures be followed and the teacher’s record corrected…in other cases, the failure to follow evaluation procedures may be shown to have so prejudiced a teacher’s position that more substantial relief may be in order….’”  Quoting In School Committee of Danvers v. Tyman, 372 Mass. 106, 114 (Mass. 1977).

Qualified personnel who worked with Grievant expressed concern that it would not be in the best interests of students to return Grievant to her position.


VI.     FINDINGS OF FACT


     The following Findings of Fact are determined to be relevant to this matter:

Grievant was a School Adjustment Counselor

at the SAFE Springfield Academy Middle School, a public school for children with psychological and psychiatric problems.  School adjustment counselors are included as “teachers” within the CBA and Massachusetts statutes (supra). 

The primary role of the Adjustment Counselor is to assist students in being socially and emotionally available to learn.  There were five Adjustment Counselors, including Grievant, during her employment at Springfield Academy. 


Grievant served in her position for two school years - 2007-2008 and 2008-2009.  Her supervisor was Assistant Principal Rhonda Jacobs. She was on non-PTS status because she had not been a counselor for three consecutive school years as required to reach professional status. (M.G.L. c. 71 § 41).

Grievant’s December 4, 2007 Adjustment and Guidance Counselor Observation Form indicated that Grievant at least met expectations for elements listed.  No deficiencies were recorded.  A few categories were marked, “Exceeds Expectations.” (Employer Exhibit-EX-1A).

Ms. Jacobs issued to Grievant a verbal reprimand dated June 13, 2008. (EX-13.) The documentation stated clearly the reasons for the reprimand, all of which had to do with administrative problems (e.g. tardiness).  There is no substantive or procedural linkage with the arbitration at hand.

Mr. Allan Menkel, Senior Administrator of Human Resources, suspended Grievant from November 4-6 and on November 12 and 13, 2008 following altercations with students and parents. (EX-12.)  Mr. Menkel clearly stated the deficiencies in Grievant’s job performance and the reasons for the suspension.

On November 21, 2008, Ms. Jacobs placed Grievant on a Professional Improvement Plan (“PIP”).  (JX-9A and 9B.)  On May 14, 2009, Ms. Jacobs issued a Final Evaluation (JX-6) that served as a non-renewal notice to Grievant.  Ms. Jacobs submitted Incidents and Letters of Events (revised 5/15/09) to the Principal, Dr. Alex Gillat. This document listed a series of incidents “of a serious nature and the performance/behavior is unbecoming of an adjustment counselor.” (EX-10.) Dr. Gillat issued a letter dated May 15, 2009 stating his decision not to reappoint Grievant for the 2009-2010 school year. (EX-7.)  There is no documentation that Ms. Jacobs explored these issues specifically with Grievant.

The Arbitrator’s mandate is to determine if proper procedures were followed in Grievant’s non-renewal. It is necessary for the Arbitrator to examine the Employer’s allegations regarding job performance to some extent to assess if the Employer offered adequate explanations to Grievant and provided her with directions for improvement as required by the CBA.

The Springfield Teacher Evaluation and Development System (“STEDS”) (JX-2A) is the instrument for evaluation and observation of teachers and counselors. The STEDS has been incorporated into the CBA in Article 21A. (JX-1, p. 50.)

     The STEDS states that,

“Driving principles of this evaluation and development system are that teachers are the most important resource of the school system and the Springfield community, that teachers have the most important impact on the success and growth of student learning, and that teachers should have the opportunity to demonstrate their professional contributions to student learning and to the school evaluation system….


“The primary goals of the…STEDS are:  1. to observe and assess the quality of teaching practices and technical skills in the classroom; 2. to assess the demonstration of professional responsibility of teachers toward students, colleagues, parents and community members; 3. to assess the improved impact of teaching on student learning; 4. to provide continuous professional growth opportunities for teacher and career development opportunities….


“Observations


…At the beginning of each ongoing evaluation cycle,


“Evaluation of Teachers Without Professional Status


Teachers without professional status shall be evaluated at least once a year and observed at least two (2) times each year…

…(when) on a Professional Improvement Plan, the timing and number of observations will be determined by the plan…a teacher on a Professional Improvement Plan will have no fewer than three (3) observations…

…teacher without professional status not recommended for reappointment must be observed a minimum of three (3) times....

“Professional Improvement Status


A teacher will be placed on a (PIP) when an evaluator and/or principal identifies one or more Principles of Effective Teaching as not meeting expectations.


A minimum three (3) month plan will follow…


…The supervisor/principal is responsible for the recognition and explanation or documentation of any teacher weaknesses and for providing specific recommendation, suggestions, examples and opportunities for improvements as well as for giving feedback on progress….The teacher is responsible for following the prescribed improvement plan and demonstrating strengthening in the area(s) of weakness.  Any significant expenses associated with requirements of the plan (i.e. courses, workshops, conferences, and travel outside the district) will be assumed by the school system.”  (STEDS, p. 5.)


Mr. Arlindo Alves has been the head of the bargaining team for the past four years and a bargaining team member for the past seventeen years. Dr. Joseph Burke, Superintendent of Schools at the time, represented the Employer at the sessions.  He did not testify. There is no reason to doubt Mr. Alves’s rendition and memory of the negotiations.

  Mr. Alves testified that as a result of an arbitration in 2006,

the Parties entered into 25 negotiation sessions to develop the procedures and forms for evaluations.  The Observation Form and the PIP were developed as a result of those negotiations. (Tr. III, p. 537.) (JX-2B and 2C.) 

The draft Counselor Observation/Evaluation Rubric (Employer Exhibit-EX-2) was not negotiated.  There is not yet a negotiated document for guidelines in evaluating guidance counselors. 

An evaluation is the entire procedure of examining teacher performance. (Tr.540.) Teachers without professional status are to be evaluated at least twice a year.  The evaluation process includes a minimum of two observations with pre and post observation meetings for both. At the end of that cycle, the Employer completes a formal evaluation form.

If a teacher is recommended for non-renewal, three observations are required during the school year in which the non-renewal took place.   The employee would need the third observation to give ample opportunity to improve.  It was a mutual objective to encourage improvement and retention of teachers as there had been considerable turnover among personnel.

The components of the Adjustment and Guidance Observation Form were subjects of the negotiations.  This is also true for the components of the PIP.

The Employer conducted two formal observations of Grievant during the year in which she was not renewed.  One of the two observations occurred during the period of the PIP. Ms. Jacobs observed Grievant informally on other occasions.

Ms. Jacobs conducted a formal observation of Grievant on October 27, 2008.  Prior to the observation, Ms. Jacobs and Grievant met for the required pre-observation meeting on October 24.  Grievant presented Ms. Jacobs with the lesson plan to be addressed. 

The goals of the plan were not discussed with specificity, and Ms. Jacobs did not provide Grievant with the observation forms.  She did not explain the observation and evaluation forms.  These are all STEDS requirements. 


Ms. Jacobs and Grievant met for the post-observation meeting on November 10, 2008 and signed the Adjustment and Guidance Counselor Observation Form. (JX-10.)   The comments on the form were fairly detailed and delineated the problems identified by the supervisor. An exception to this clarity and specificity was the comment following Principle VI: Fulfills professional responsibilities.  “Ms.xxxxx has used unethical methods….” This is a serious allegation, and the Employer must inform Grievant regarding it by using specific examples. 

The witnesses differ on whether Ms. Jacobs engaged in a dialogue or provided a roadmap or guidance regarding how Grievant could improve and succeed.  She did not discuss specifics about how she would measure Grievant’s success or failure. There is no documentary evidence that Ms. Jacobs performed fulfilled these obligations.
Subsequent to the observation discussed above, Grievant was placed on the PIP. (JX-9A and 9B.) It is not mandated that the Employer place a teacher on a PIP before non-renewal. 

     The PIP is intended to bring together the supervisor and the employee to identify problems and areas of deficiency and to devise a plan of action to address the issues.  Again, the purpose of the PIP is to allow the employee to improve and succeed.  Presumably, the Employer determined that Grievant had the possibility of succeeding in the job.

On the face of it, the components listed in the PIP categories of Requirements and Feedback as well as Resources to Apply are very general.  They demand specific explanation of the deficits and how Grievant could go about remedying them.  Again, Ms. Jacobs did not adequately engage in the act of explaining and discussing the generalities so as to give Grievant clear guidance on how to proceed.

The PIP listed six dates for Progress Review and Feedback and “Date for next observation: 1/09.”  At the December 5, 2008 meeting, Grievant presented a three-page “Detailed Outline on how I met/exceeded expectation(s).” (UX-K.)  Ms. Jacobs did not give adequate feedback on this material, nor did she present her own feedback or details on Grievant’s progress or ideas for improvement. In the December 5 document, Grievant did not address the allegations of unethical behavior mentioned in Principle VI of the Observation Form.

Ms. Jacobs met with Grievant on one other date listed in the PIP for Progress Review and Feedback - January 9, 2009.  That date was also scheduled for an observation which did not occur.

At the January 9, 2009 meeting, Grievant shared two documents she had prepared with Ms. Jacobs.  “Daily Classroom Goals” bears a handwritten date of December 17.  (UX-L.)  The Student at a Glance sheet is not dated.(UX-M.) Ms. Jacobs did not give feedback.

On February 9, 2009, Ms. Jacobs, accompanied by Yolanda Johnson, Director of Student Support Services, observed Grievant.  It is unclear whether a pre-observation meeting took place.  However, as Grievant was on a PIP, this meeting is not required.  (JX-2A, p. 2, Para. 5.)

Ms. Jacobs and Ms. Johnson generated the Observation Form (JX-8). It is not dated.   Ms. Jacobs recorded substantial improvement.  There are six areas of deficiency identified as opposed to 16 deficiencies in October 2008.  The handwritten comments are difficult to read and do not specify the incidents to which Employer refers.


Ms. Jacobs met with Grievant for a post-observation meeting on February 13, 2009. 

Ms. Jacobs provided Grievant with a memorandum dated February 12, 2009, entitled, “2nd Observation 2/9/09.” (EX-5.)  The bullet points are very brief. However, they are fairly clear and sufficiently detailed at least to begin a discussion. 

Another memorandum from Ms. Jacobs to Grievant entitled, “Judgment-Incident resulting in staff injuring & Electronic Devices” was dated February 11, 2009. (EX-6). It detailed two incidents in which Ms. Jacobs was of the opinion that Grievant had exercised poor judgment.  The descriptions were fairly detailed and could have served as the foundation for a discussion and education and training.

A memorandum dated March 2, 2009 summarized the post-observation meeting on February 13, 2009. (JX-7.)  Ms. Jacobs wrote, “As stated to you during our post observation meeting, you have made improvements that have been noted on the observation tool.  However, there continue to be indicators where you received ‘does not meets’ with the Principles that remain to be of serious concern.”  (JX-7, para.1.)

This document included some examples of behavior that the Employer identified as problematic.  One example had been dealt with in the past.  Bringing it up at this time was counterproductive.  Again, I do not find the examples to be plentiful enough nor does the document illustrate adequately what is meant by a comment such as, “…you should…exercise good judgment in the best interests of the student/s and colleagues when necessary.”  The document is lacking adequate measurements for improvement and success in the job.

Victoria Ellis was a math teacher teaching under a waiver as a Special Education Teacher.  She provided Ms. Jacobs with documents that enumerated specific incidents that caused concerns

regarding Grievant’s interaction with students. (EX-8 dated March 13, 2009, and EX-9 dated May 18, 2009.)   Ms. Ellis also testified.  The evidence does not show that either Ms. Ellis or Ms. Jacobs broached these specific concerns with Grievant and that Grievant was given the opportunity to respond and tell her side of the story.

Grievant initiated a meeting with Ms. Jacobs on March 13, 2009 regarding Grievant’s interactions with students.  At that time, Ms. Jacobs informed Grievant that Grievant would not be renewed. 

     The third observation that the STEDS and the PIP required did not take place.  The informal observations and “walk-throughs” that Ms. Jacobs performed do not rise to the level of observations within the meaning of the STEDS or the PIP.

The STEDS implies that an employee on a PIP should avail himself or herself of courses or workshops.

Presumably, these trainings will assist in improvement.  The PIP states that District Professional Development is one example of a resource that the employee should use to improve.  Rather than facilitate attendance at a potentially helpful training, Ms. Jacobs prevented Grievant from attending the Woodstock Johnson training without adequate explanation.

Ms. Jacobs referred Grievant to Barbara Growhoski, Special Education Department Chairperson, to utilize as a resource. (PIP, JX-9A.)  Ms. Growhoski did not hold discussions with Grievant or interact with Grievant in a meaningful, educational way that would facilitate Grievant’s improvement.

The PIP also named Ms. Johnson as a resource for Grievant.  Grievant attempted to interact with Ms. Johnson by sending her information via e-mail.  Ms. Johnson did not provide feedback.


VII. OPINION


The Arbitrator’s mandate is to determine if the Employer violated the CBA in the manner and procedure in which it evaluated the Grievant leading to her non-renewal in May of 2009.  It is not the Arbitrator’s mandate to evaluate Grievant’s competency and job performance.

The testimony at the hearing focused largely on the issue of the appropriateness of the evaluation process.  The Parties elected to avoid a full-blown recitation of Grievant’s performance deficiencies or accomplishments.  There was testimony and documentation on both sides, however, regarding Grievant’s job

performance.  While analyzing whether the Employer’s evaluation processes honored the dictates of the CBA, it is inevitable that the Arbitrator will focus some attention on the quality of Grievant’s performance and form opinions on it.  It is necessary to determine if the Employer outlined with adequate specificity what Grievant’s deficiencies were and how improvement would be evaluated. 

The first issue to consider is which party bears the burden in this matter. 

The Employer contends that a teacher with non-PTS is considered to be an “at will” employee not entitled to statutory protections such as “just cause.”  Additionally, the Employer asserts that the matter does not involve discipline or discharge but instead whether evaluation procedures were followed.  Therefore, the Employer asserts, Grievant bears the burden of establishing a violation of the CBA.

An "at-will" employee is someone whom an employer can terminate for any reason or for no reason at all. In this matter, the CBA and Massachusetts law grant increased protections.

Massachusetts law reads as follows,

M.G.L. c. 71, § 42.  Discharge of Teachers or Other Employees of the School District.

“….A teacher who has been teaching in a school system for at least ninety calendar days shall not be dismissed unless he has been furnished with written notice of intent to dismiss and with an explanation of the grounds for the dismissal in sufficient detail to permit the teacher to respond and documents relating to the grounds for dismissal, and, if he so requests, has been given a reasonable opportunity within ten school days after receiving such written notice to review the decision with the principal or superintendent, as the case may be, and to present information pertaining to the basis for the decision and to the teacher's status. The teacher receiving such notice may be represented by an attorney or other representative at such a meeting with the principal or superintendent. Teachers without professional teacher status shall otherwise be deemed employees at will….


   “At the arbitral hearing, the teacher and the school district may be represented by an attorney or other representative, present evidence, and call witnesses and the school district shall have the burden of proof. In determining whether the district has proven grounds for dismissal consistent with this section, the arbitrator shall consider the best interests of the pupils in the district and the need for elevation of performance standards.”


The law makes a distinction between teachers on the job less than 90 days, teachers on the job between 90 days and three school years, and teachers on the job for more than three years.  M.G.L. c. 71 § 41.  By analogy, in other work contexts, there is a period of probation, which is generally no more than six months, during which the employer may terminate employment with less cause than given for a non-probationary employee.  Also, during the probationary period, the burden is on the employee to prove a case of improper termination.  The 90-day period in the statute appears to correspond to the probationary period.

     The CBA expands upon State law. For teachers with PTS, the standards for dismissal are high, and the burden is clearly on the Employer to show cause.  A teacher with non-PTS of two years, as in the case of Grievant, is located in an interim category.           

     It appears from the applicable statutes, the CBA and through analogy to other employment settings that a non-professional teacher of two years is by no means an “at-will” employee.  Further evidence of this is that the term, “dismissal”, not “non-renewal” appears in M.G.L. c. 71 § 41.

  “Non-renewal” is dismissal by another name, and the burden should be on the Employer to prove that non-renewal was warranted.

     The CBA furnishes guidelines for the evaluation and non- renewal of teachers. The STEDS elaborates on the procedures.

The Employer argued that the STEDS’ reference to the requirement of three observations of a teacher on a PIP meant three observations during the teacher’s tenure of employment.  The Association contends that the three observations are meant to occur during the period of the PIP.

  As previously stated, the purpose of the PIP is to

assist the employee to improve, with a goal of employee retention.  It is logical that the intention of the STEDS is that a teacher on a PIP should be observed three times during the term of the PIP.

     A tool for determining the intent of contract language is to examine bargaining history.  The parties went to great trouble to develop the details of the STEDS and the PIP.  It is incumbent upon the Arbitrator to honor the integrity of the bargaining process.

     There is not a requirement that a PIP take place prior to non-renewal.  Presumably, when the Employer placed Grievant on  the PIP, the Employer believed Grievant could succeed in the job.  

It was necessary to provide Grievant with the opportunity to identify her strengths and weaknesses and to improve.

Ms. Jacobs’s informal observations and walk-throughs are not substitutes for the requisite formal observations with accompanying meetings. The informal observations may fulfill the supervisor’s goals of observing and assessing.  They do not provide “continuous professional growth opportunities for teachers.” (JX-2/STEDS, p. 1.)

The most important element of the evaluation process is clear, detailed, written and oral communication with Grievant regarding the Employer’s assessment of Grievant’s performance and behavior.  It is imperative to provide the employee with examples of specific events that demonstrate shortcomings and then provide techniques for improvement.

     It could be said that a counselor should know how to proceed in the job, or he or she is not adequate to perform in the position.  However, employers differ in their assessments and requirements.  There are at least two sides to every story.

     Any written report of a teacher’s performance must be given to the teacher and discussed with him or her.  The teacher is entitled to file an answer in writing to any complaint against him or her. School Committee of West Bridgewater v. West Bridgewater Teachers Association, 372 Mass 121 (1977).

     One is reluctant to demand that an employer dot every “i” and cross every “t” when the welfare of children is at issue.  If an employee committed a particularly egregious act, requirements of the STEDS could be bypassed. (CBA Article 21 A, p. 50.) Barring such an event, it is important to follow protocol for this employee and for others who are or will be in similar situations, in order to preserve the value and purpose of the bargaining process.


VII. DECISION

   

      For all of the reasons above and based upon the record in its entirety, the following conclusion is reached:

The Employer shall return Grievant to non-Professional Teacher Status and to the Professional Improvement Plan for a minimum of three months.  During the period of the PIP, the Employer shall perform the requisite evaluations and observations.   

     The Employer shall: conduct the three observations required for an employee on a PIP; give specific, observable and measurable recommendations, suggestions, examples and opportunities for improvement;  provide and explain observation and evaluation instruments; explain Grievant strengths and weaknesses; engage in a dialogue with Grievant on her progress and provide her an opportunity to furnish information on her performance; and give indicators on how improvements will be measured.  The most important element of this process is clear, detailed, written and oral communication with Grievant regarding the Employer’s assessment of Grievant’s performance and behavior.

     If a period of longer than three months is needed to complete the evaluation process, Grievant will remain on the PIP until the evaluation process is completed.

     The Arbitrator retains jurisdiction in the event of disagreement or the need for clarification on the implementation of this award.



______________________________        DATED:OCTOBER 7, 2010

KAREN G. ANDRES, ARBITRATOR