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In the Matter of Arbitration between
UNITED FEDERATION OF TEACHERS
and
BOARD OF EDUCATION OF THE
CITY OF NEW YORK
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O P I N I O N
Cases Nos. 1330-0324-74 (Mae Leass)
and 1330-0615-73 (Bertil Swanteson)
Arbitrability of claims re materials in
official files
Issues
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.
Contract
Provisions
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.
Principal
Contentions
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.”
Discussion
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.”
* * *
“Relevant Considerations”
“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.”
* * *
“Findings”
“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.
Decision
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.
Respectfully submitted,
James C. Hill, Arbitrator
February 16, 1976
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