Monday, September 2, 2013
Leass Arbitration Decision February 1976
In the Matter of Arbitration between
UNITED FEDERATION OF TEACHERS
BOARD OF EDUCATION OF THE
CITY OF NEW YORK
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Cases Nos. 1330-0324-74 (Mae Leass)
and 1330-0615-73 (Bertil Swanteson)
Arbitrability of claims re materials in
Bertil Swanteson, a teacher of social studies at Washington Irving High School, and Mae Leass, formerly a guidance counselor at Thomas Jefferson High School, have submitted a number of complaints charging, among other things, that documents placed in their official files were inaccurate and/or unfair and should be removed from these files in accordance with the provisions of the Agreements covering, respectively, Classroom Teachers and Guidance Counselors. In addition, Mr. Swanteson has charged intentional harassment by members of his school administration. The Board contends that none of these charges presents an arbitrable issue under the cited Agreements.
The issue here considered is whether supervisory evaluations and observation reports are subject to review under the grievance and arbitration provisions of the Agreements, as claimed violations of Article IV F 20 of the 1972-75 Classroom Teachers’ Agreement, or Article V 5 of the 1972-75 Guidance Counselors’ Agreement. (Reference hereinafter to teachers is meant to include both classroom teachers and guidance counselors.)
The question of arbitrability of Mr. Swanteson’s claims of harassment is the subject of a separate decision, and is not considered here.
Discussion of the merits of both of these grievances is deferred to later proceedings.
Article IV F of the Classroom Teachers Agreement provides:
20. Teacher Files
Official teacher files in a school shall be maintained under the following circumstances:
1. No material derogatory to a teacher’s conduct, service, character or personality shall be placed in the files unless the teacher has had an opportunity to read the material. The teacher shall acknowledge that he has read such material by affixing his signature on the actual copy to be filed, with the understanding that such signature merely signifies that he has read the material to be filed and does not necessarily indicate agreement with its content. However, an incident which has not been reduced to writing within three months of its occurrence, exclusive of the summer vacation period, may not later be added to the file.
2. The teacher shall have the right to answer any material filed and his answer shall be attached to the file copy.
3. Upon appropriate request by the teacher, he shall be permitted to examine his files.
4. The teacher shall be permitted to reproduce any material in his files.
5. Material will be removed from the files when a teacher’s claim that it is inaccurate or unfair is sustained.
The same provision is included as Article V 5 in the Guidance Counselor’s Agreement, except that the reference is to counselors rather than teachers.
The Board contends that observation reports and supervisory evaluations are matters of professional judgment; they are not subject to challenge or review under the grievance and arbitration provisions of the Agreement. The Board argues that such review was never intended, that this was so understood and accepted in contract negotiations, that the Chancellor has so ruled in a number of Step 3 decisions which were accepted and not appealed to arbitration, that Union Counsel has so advised the members in the Union’s publication, and that this basic contention has been sustained in a prior Award of this Arbitrator (Case No. 1330-0175-72, Mary Posner).
The Board distinguishes grievances relating to paragraphs 1 through 4 of Article IV F 20, which are essentially procedural, and those relating to paragraph 5, which conveys substantive rights. While some materials in a teacher’s file may be challenged under the grievance procedure, it was never intended that professional judgments and evaluations of a teacher’s performance should be subject to arbitral review. This distinction, the Board argues, was recognized and accepted in the Posner case, cited above.
The Board acknowledges that a teacher or counselor may grieve over matters not appropriately included in an observation report or evaluation. (Footnote 1: Miss Klaus, then Director of Staff Relations, testified that it was not originally intended that any claims arising under Paragraph 5 or Article IV F 20 should be subject to review under the grievance and arbitration provisions; that all such claims would be referable to other avenues of appeal. She stated, however, that since the Board did not press this claim in prior arbitrations, it does not now contest the arbitrability of matters arising under this contract provision which do not involve observation reports or supervisory evaluations. [This claim was made, and rejected, in Case 1339-0522-69, Irving Kafka].) However, the Board rejects as “illusory and impractical” the Union’s contention that claims of factual error within an evaluation or observation report may be grieved or arbitrated. To do so would leave a judgment and conclusion without any factual evidence or identification to give it meaning.
The Union contends that all provisions of Article IV F 20 are subject to the grievance and arbitration provisions of the Agreement, that this has been acknowledged and agreed with respect to sections 1 through 4, that no distinction is made in the wording of section 5, and none was intended, and that there is no other forum for appeal. While the Bylaws make special provision for review of performance, such review is limited to the appeal of Unsatisfactory ratings, under restricted procedures, with no right of counsel and no appeal to outside authority. Moreover, if section 5 is to have any meaning, it must afford prior review and, if the teacher’s claim is sustained, removal of the offending material from the files before such files are considered in the appeal of an Unsatisfactory rating under Section 105(a) of the Bylaws.
The Union denies any binding practice whereby supervisory evaluations have been excluded from grievance and arbitral review. Failure to appeal third step rulings in particular instances cannot be construed as Union acceptance of the Board’s position. Moreover, the Union argues that other contract provisions, in which there is no claim of exemption from grievance and arbitration, involve professional judgment; e.g., Article V A 3 h, which affords certain rights of seniority in appointments “if not inconsistent with the needs of the school.”
By the letter of the Agreement, the Union’s position would seem to be correct. There is nothing in the wording of Article IV F 20 of the Classroom Teachers’ Agreement or Article V 5 S of the Guidance Counselors’ Agreement, which asserts or implies immunity from challenge and review under the grievance and arbitration provisions of the Agreement. Neither is there any language which expresses or implies any such exclusion of supervisory evaluations, within the totality of documents in teacher files, from grievance or arbitral review.
True, the Agreement excludes from the definition of a grievance “any matter as to which (1) a method of review is prescribed by ... any by-law of the Board of Education.” (Article X, Grievance Procedure, A. Definition) But a teacher’s right of review under the bylaws is limited to the appeal of an Unsatisfactory rating. The proceedings afford no opportunity of challenge of the fairness or accuracy of documents in the file of a teacher who is rated Satisfactory, even though such materials could be used adversely to the teacher’s interests or advancement in other situations. Also, the procedures and the scope of 105(a) proceedings are different. Neither the teacher nor the Union has any say in the selection of the review panel. The teacher has no right of representation by counsel. Moreover, the Agreement provides that material which is inaccurate or unfair should be removed from the file; it follows that such material should not be a part of any records before a supervisor or reviewing official at some future time, particularly an appeal body considering an appeal from an Unsatisfactory rating.
Nevertheless, I am persuaded that the parties did intend an exclusion of supervisory judgments and evaluations of a teacher's performance from arbitral review. This conclusion is based in part on the inherent nature of the problem and the judgments to be made. Questions of teaching methods and the conduct and proficiency of teachers in the classroom are matters for professional evaluation. Similarly, it is to be noted that review of Unsatisfactory ratings, or appeals from disciplinary actions or discharge, are referable to other avenues of appeal and excluded from the grievance and arbitration provisions of the Agreement.
It is significant, in my judgment, that the Union's counsel has expressed a similar view. In a column written for the Union's publication, the New York Teacher, December 17, 1972, Mr. Eugene Kaufman, Co-General Counsel, NYSUT, reviewed various ways by which a teacher could protect his or her interest in the official files, including recourse to the grievance procedure to insure the removal of improper documents from the file. In this connection, Mr. Kaufman also pointed out that:
“Unfortunately, for the most part, observation reports are not grievable. While you may not like the contents of such a report, it is an expression of opinion of a supervisor and cannot be overturned either through grievance or arbitration.”
Mr. Kaufman went on to say:
“Of course, if such a report contains a statement which is not factual, that statement can be attacked. The best thing to do with the observation report is to prepare a response, and rebut what has been said.” (“Legal Column” in the New York Teacher, December 17, 1972.)
In testimony in this proceeding Mr. Kaufman again stated the view that pedagogical judgments in the evaluation of a teacher's performance were not subject to arbitral review. However, he was firmly of the opinion that a misstatement of fact in any document, including observation reports of a supervisor, is subject to challenge and review under the grievance and arbitration procedures.
The principal spokesman for the Board, Miss Ida Klaus, then Director of Staff Relations, appears to agree in part with the Union position. As noted above, Miss Klaus maintained that supervisory evaluations of teachers are matters of professional judgment and are not subject to the grievance procedure. Miss Klaus admitted to certain exceptions, however, particularly the inclusion in such reports of matters not actually observed but based on hearsay, or comments on matters which are not part of teaching duties. But such exceptions, in her view, do not extend to the accuracy or fairness of a proper evaluation of the teaching function by a supervisor.
The Board maintains that this distinction has been recognized and accepted by both parties; that no grievance claim relating to evaluation reports in teachers’ files was brought to Step 3 of the grievance procedure during the first three and a half years of Section 5’s appearance in the Agreement; that the first case which posed this issue was the grievance of Ferne Levit, filed in the spring of 1971. In this case the Hearing Officer’s findings, approved by the Chancellor and never appealed by the Union, clearly stated the Board’s position, including the following:
“Facts of the Case -- Basis of the Appeal”
“1. The report of the lesson of February 26, 1970 commends the teacher for some good features but documents in some detail the criticism that she adhered too rigidly to her prepared lesson-plan, failing to take full advantage of student interests as revealed by their questions.”
* * *
“1. The By-laws and the established policies and practices of the Board of Education call for principals to observe teachers in their performance of their basic instructional tasks and to evaluate this professional performance on the basis of these observations and other sources of information available to the supervisor. The supervisor is expected to use this knowledge by making appropriate suggestions for improvement and in preparing various formal appraisals among which are the reports for continued service or permanent appointment.”
“Of necessity, thee will result value judgments and appraisals based on the supervisor’s philosophy of education, the relative weight he attaches to different aspects of the teaching act, the significance attached to different aspects of the school situation and other similar considerations.”
“Disagreement by a teacher with a supervisor’s evaluation of her performance in her basic professional role cannot be equated with the ‘inaccuracy’ or ‘unfairness’ that may on occasion be present in filed material critical of an employee’s service when carrying out other responsibilities.”
“2. The Board of Education in concluding a collective bargaining agreement with the United Federation of Teachers did not intend to alter this long-standing relationship of supervisor to teacher -- an essential element of the functions of schools as educational institutions. The various clauses of the Agreement do not modify this relationship and may not be used to do so.”
“The grievance machinery then cannot be invoked to challenge the conclusions of a supervisor in his evaluation of the quality of a teacher’s professional performance.”
* * *
“Appraisals of the quality of a teacher’s performance in carrying out his basic professional tasks are not reviewable through the grievance machinery.”
The decision in Levit was not appealed. The Union argues that failure to appeal a particular decision cannot be construed as a waiver of position. Perhaps so in most situations, although Levit must be recognized as a leading precedent on an issue of vital importance. Moreover, the rule of Levit has been repeated in other cases, without appeal, prior to the third step decision in the case of Mae Leass. In any event, it is not necessary to hold the Union in forfeit by its failure to appeal these cases to arbitration. In my judgment, the Chancellor’s conclusions in the case of Ferne Levit were essentially correct.
While Levit was a major precedent, it is not correct to hold that the Board has been consistent in the various cases which have posed the question of the right of appeal from the judgments of supervisors. Neither can we accept the statement that “from 1967 through 1971 no grievance claiming that documents evaluatory of a pedagogue’s professional performance were inaccurate or unfair was brought to Step 3 of the grievance procedure.” (Board’s Brief, p. 6) At least three such complaints were made and appealed to arbitration under the 1967-69 Agreement, all alleging that statements of school principals in teachers’ files were inaccurate and/or unfair. (Cases 1339-0757-68, Adele Greenberger; 1339-0522-69, Irving Kafka; 1339-0683-68, Steven Angelo). In Greenberger and Kafka the issue was limited to the “grievability” of the teachers’ complaints, the Superintendent having ruled that these complaints were not subject to the grievance procedure. In both cases the arbitrator ruled that the complaints constituted grievances within the meaning of the Agreement and the refusal of the Superintendent to consider these grievances was violative of the Agreement. And in Greenberger Board’s Counsel stated:
“To the extent that the Union claims that Mrs. Greenberger’s complaint constitutes a grievance because it involves a document in her official file maintained by her principal, the Board agrees with that contention.” (Record, p. 21)
In Kafka the Board maintained that the arbitrator lacked jurisdiction to consider the merits of the teacher’s claim. At best, the Board asserted, the arbitrator could only be concerned with the enforcement of the ruling of some other, unnamed, authority to whom the teacher’s complaint might be submitted. In Angelo the Board’s contention was precisely the reverse. The Board did not contest arbitrability of the teacher’s claim that the principal’s letter, charging him with failure to conduct certain laboratory work, was inaccurate and unfair; the Board merely challenged the authority of the arbitrator to award a remedy. (The case of Angelo was settled and withdrawn before decision.)
In several cases which followed Levit the Chancellor has ruled that claims of inaccuracy or unfairness in observation reports may not be raised under the grievance procedure. (E.g., Step 3 decisions in the cases of Kathleen Sullivan and Audrey Macbeth). In other instances the Board has acknowledged grievance claims within teacher evaluations. Thus, Lawrence Dorson protested the inclusion in an observation report of a criticism of his failure to wear a tie in class; and Leslie Kingon was criticized for his assignment of a certain book which was not on the approved list for his class. Both teachers grieved, both grievances were denied as non-grievable at steps 1 and 2 of the grievance procedure, and in both cases the Chancellor reversed these decisions, holding that the teacher’s claim that these particular judgments of the school principals were not properly included in an observation report was grievable, even though in each instance the claim was denied on its merits.
In a third step decision on the grievance of Jean Mott, dated June 6, 1974, the Chancellor reviewed the records of seven reports of supervisors which were grieved by Mott. As to three of these, all letters from the school principal based on class visits, the Chancellor found that certain statements were inaccurate or unfair. Two of these involved statements that children had left the classroom, or that certain children reported late. The third related to an alleged failure of the teacher to send letters to the parents, which was held to be unrelated to any act of the teacher during the observation, and later found to be untrue in fact. The Board notes in its brief that the incidents discussed might have been considered non-grievable, as resulting from the principal’s observations of classroom events, but the grievance was entertained since these incidents “were not essentially educational in nature.” It stated: “The grievance machinery is available only to determine whether matters referred to in an observation report are proper parts of that report. If they are, then the portrayal of those matters may not be reviewed in the grievance process. If the matters are not proper parts of the observation reports, however, fairness or accuracy of their portrayal may be determined in that process.” The case of Mott suggests that this is a fine line of distinction which might be bridged or not at the Board’s discretion. Certainly allegations of a teacher’s mishandling of classroom order or discipline are likely to be considered important elements of supervisory evaluation. A misstatement of fact, based on a misunderstanding of the supervisor, is of vital concern to the teacher, whether the error appears in an observation report or some other document, which both parties recognize as grievable.
As noted heretofore, the Board cites Union Counsel Kaufman on the non-grievability of professional evaluations of a teacher's performance and proficiency, but takes strong exception to his contention that factual allegations within such reports may be challenged under the grievance and arbitration provisions of the contract. Board's counsel states:
“Mr. Kaufman's claim that factual matters in such evaluations could be the subject of grievances is an impractical and illusory attempt to distinguish the indistinguishable. While such a distinction may appear reasonable at first, a thorough examination of an evaluatory report reveals that a rending of it into its factual and conclusory aspects is impossible. Such a report ordinarily sets forth those significant events which the supervisor has observed and then draws conclusions based upon his view of their educational soundness. The two are so intertwined and interrelated that to attempt to separate them would be analogous to Hercules' attempt to unravel the Gordian knot. ... The conclusions of the report, which Mr. Kaufman has admitted are not grievable, depend upon the factual matters set forth therein. To remove essential facts, which Mr. Kaufman claims is possible, would leave only unsupported conclusions, creating, in effect, a travesty of an observation report. As Hercules destroyed his problem rather than solving it, so this attempted separation of facts and conclusions would destroy an observation report.” (Brief, pp. 11-12)
“Mr. Kaufman's proposal for the handling of grievances concerning supervisory evaluations would leave, if the grievant were sustained in a claim of factual error, only baseless charges, not conclusions. Such a result was never agreed to by the Board.” (Brief, p. 14)
In my judgment, this argument is without merit. It seems to say that if an evaluator's conclusions rest on assertions of fact which are shown to be false, the assertions must remain lest the conclusion be seen as baseless. The argument is untenable. If the conclusions of an evaluator rest on assertions of fact which are shown to be false, the conclusions have no validity and should, in all fairness, be deleted. And the same result would obtain, it should be noted, if the Board were upheld in its original position that Article IV F 20 (5) was intended to provide for review of the accuracy and fairness of evaluative reports by some other appellate body, apart from the contract grievance procedures. Certainly if such evaluations should remain in the files, while the factual basis for such conclusions has been found to be false, the teacher should have the right to make it known, as a matter of record, that the judgment rests on factual allegations which have been deemed false and expunged from the record.
The question of fairness of statements in a teacher’s file is perhaps more subtle. I agree with the Board’s contention that critical appraisals of a teacher’s conduct and performance in the teaching function are matters of professional judgment and are not meant to be subject to challenge or review under the grievance and arbitration provisions of the Agreement. One need not rely on written or oral commitments, or the proofs thereof, to hold that this is an implied understanding in the professional relationships of teachers or guidance counselors with their supervisors. But there may still be areas in which the documents in a teacher’s file are properly subject to a test of fairness, as well as accuracy, and which do not require or imply a judgment of professional educators. This arbitrator stated in the case of Francine Newman:
“It is not just a question of the accuracy of the facts reported in a document. ... a letter which is technically accurate as to facts could lead to wholly false inferences on the part of a reader not familiar with the details. The question at issue concerns the inferences which might reasonably drawn from this letter, particularly on the part of a person who is not familiar with the details of the incident.” (Opinion, p. 8, Case No. 1339-1109-70).
As noted in the particulars of that case, statements which are technically, or literally, accurate may suggest or lend themselves to false or misleading conclusions.
For the reasons, and subject to the limitations, discussed above, the arbitrator holds that a claim that statements in supervisory evaluations and observation reports are inaccurate or unfair presents a grievable and arbitrable issue under the Agreement.
James C. Hill, Arbitrator
February 16, 1976