Quick Hits - Exhaustion of remedies, a full day's work, improper touching and revoking a resignation

DFR plaintiffs failed to pursue internal union remedies but case to be held in abeyance pending internal appeal

In what describes as "a case about process," the Sixth Circuit has reinstated a DFR/301suit against the UAW and Chrysler dismissed by the District Court (here) for failure to exhaust internal administrative remedies. Slight v. Local 12, United Automobile, Aerospace, and Agricultural Implement Workers of America, et al. Plaintiffs filed suit claiming that the Union had wrongfully withdrawn their grievance that Chrysler had not properly paid them. The District Court granted summary judgment to Chrysler and the UAW, finding that plaintiffs had failed to utilize the appeal procedure set for in the UAW constitution The Circuit agreed that plaintiffs had failed to exhaust their internal union remedies, but remanded with instructions to hold the case in abeyance while an internal appeal was pursued. The Court rejected plaintiffs claim that exhaustion would be futile, noting that an agreement between UAW and Chrysler authorized reinstatement of a withdrawn grievance if the withdrawal was overturned pursuant to an internal union appeal. It noted also that the International President had the authority to waive the time limits for filing an appeal and that "[t]here's good reason for the president to waive the time limits here since the employees failed to file an appeal because the union official told them (erroneously) that 'its too late to file an appeal,' and to' get a lawyer instead." Concluding that the Union's internal appeal process may provide plaintiffs with the remedies they seek, the Court remanded the case with instructions to hold it in abeyance while an appeal is pursued.


Arbitrator rejects claimed conflict between pension regulations and cba
Sanitation employees of the Town of Cheektowaga, NY worked under a cba that provided for an incentive system that allowed them to end their shift after six hours "with the satisfactory completion of their assigned routes or districts." According to the Union, a practice had developed pursuant to which employees staring at 6 a.m. would leave work at 11. The union maintained that these employees were eligible for two 15 minute breaks and a half hour for lunch which they didn't take, thereby meeting their six hour requirement. In February 2017, the Town advised the employees of a change in pension reporting it attributed to a directive from the State Controller's office. The Town informed employees that the state required work days of a minimum of six hours to be eligible for full pension credit and that employees who left prior to 12 noon would be given only prorated credit. The Union grieved this action, claiming a unilateral modification of the incentive system. Arbitrator Howard G. Foster sustained the grievance. Initially the Arbitrator rejected the Employer's position that the grievance was not arbitrable. He noted that the Union was not claiming that the arbitrator should ignore the State's requirement that employees work six hours to receive pension credit, but rather "that the reporting method that the Town used consistently before February 2017 was not in conflict with the regulations, since it was a standard work day of at least six hours." On the merits, he found that the Town had not established that the method the Union claimed was a past practice was in fact contrary to State requirements. Upholding the grievance, he noted:

I conclude from this record that there is nothing in the communications from the State resembling a "directive" from the State Comptroller, as stated in the February 1, 2017, letter. Nothing in those communications asserts to the Town that the work day, including break times, that has become the practice in the Sanitation Department does not qualify as a six-hour day within the meaning of the Comptroller's regulations. Should there be an authoritative determination from the Comptroller that the work day as established by the parties' practice does not in fact constitute a six-hour standard day as contemplated by the regulations, then the Town would be free to require that employees remain at work for the mandated six hours in order to receive full service credit. But such a determination, on the record before me, has not been made. Under these circumstances, the operation must be controlled by the parties' bargain.

The Town sought to have the award vacated, but the court rejected that effort. Arbitrator Foster's award can be found here, the Court's decision here.


Court upholds arbitrator's award revoking teacher's tenure for improper touching of students

In Dunkley v. Board of Education, Rockaway Township the NJ Appellate Division refused to set aside an arbitrator's award revoking a teacher's tenure. The teacher was alleged to have engaged in the inappropriate touching of two teenage special needs students. Arbitrator Andree McKissick upheld the teacher's removal (here) . He found the teacher's acts in this case, and conduct for which he was previously warned, warranted revocation of tenure. On the teacher's challenge to the decision, the Chancery Court, and now the Appellate Division, refused to vacate the award. Both courts rejected the teacher's argument that the arbitrator failed to consider the results of an investigation by the State's Department of Children and Families that found no sexual abuse. The Appellate Division affirmed the finding of the lower court concluding "[t]hat plaintiff was not charged with sexual abuse does not mean his conduct of inappropriate touching was [an] [in]sufficient basis to terminate him."


City did not constructively discharge employee by denying request to revoke resignation

A police officer in Hibbing MN, upset over an argument with his girlfriend, notified his Captain of his intent to resign. The Captain advised the officer to seek a psychiatric consult, which he did and which found situational depression but no need for a psychiatric hold. Later that evening the officer called the chief and agains stated his intent to resign. He was advised that he should not resign over the phone but should come in the following morning. He did so and after some discussion filled out the necessary paperwork and submitted his resignation. The next morning he expressed a desire to rescind his resignation. While the Chef did not object, the City Mangaer who had the final decision, elected not to accept the attempted revocation. The Union grieved that decision and the dispute was submitted to Arbitrator Stephen Befort. Arbitrator Befort denied the grievance. He rejected the Union's claim that the resignation could not stand in light of grievant's mental state. Reviewing the applicable principles, Arbitrator Befort noted:

As a matter of general principle, a voluntary resignation that is accepted severs the employment relationship in a matter that is not considered a discharge. Elkouri & Elkouri, How Arbitration Works 15-9. Arbitration decisions also have ruled that an employer has the right to accept or reject an attempted retraction of a resignation for any reason, Transcon Lines , 40 LA 469 (1963); Borden Co. , 38 LA 425 (1962) and that an employer's exercise of discretion to decline a retraction does not convert voluntary resignation into a constructive discharge, Fairmont General Hospital, Lab. Arb. Awards (CCH) 02-2 at 3199 (2001).

The Arbitrator concluded that despite his emotional turmoil, grievant acted in a calm and deliberate manner in resigning and did so for reasons that evidenced a rational thought process. While he ultimately regretted his decision, grievant's mental state "did not invalidate his resignation or the ability of the Employer to accept that resignation."

Arbitrator Befort's award can be found here.

Grievance timelines, threats in the workplace and public policy

All of these topics are discussed in the recent decision of the Eleventh Circuit in Peco Foods Inc. v. Retail Wholesale and Department Store Union Mid-South Council.

The case originated with the termination of an individual alleged to have made a threat of violence during a Company safety meeting. During the meeting, the supervisor advised the employees that individuals on the prior shift had been throwing ice, and reminded the employees that such conduct was contrary to Company policy. Grievant responded "I don't throw ice, I throw lead." Several employees laughed at this response. The supervisor reported this comment to his supervisor, and sometime later that morning grievant was called to a conference room where he as questioned about the comment. Grievant admitted he had made the comment but stated he hadn't meant anything by it. In response to a stewards question, grievant's supervisor acknowledged that he had not felt threatened by the comment but reported it because of a recent workplace shooting at another company. At the conclusion of the meeting grievant was sent home for the day. The next morning, grievant's employment was terminated. The termination was grieved and ultimately submitted to Arbitrator William H. Holly for resolution.

At the arbitration, the Company argued that the Arbitrator did not have jurisdiction to hear the dispute because the Union had waited too long to appeal the case to arbitration. The cba required an appeal to be made "within fifteen (15) calendar days of . . . [Peco's] answer at Step 3 of the grievance procedure." The Union had filed its appeal thirteen days beyond that deadline. On the merits, the Company maintained that grievant's undisputed comment was "tantamount to a workplace violence threat"and that based on recent workplace violence incidents any discipline short of termination would not be justified.

The Union argued that the parties did not have a history of strict adherence to timelines and that the Company had not raised this issue until the arbitration. It also argued that the termination of a long service employees for this comment was unjustified since the comment was not threatening, was not directed at any individual, was made in a lighthearted tone, and was not perceived as threatening by anyone present.

Arbitrator Holley, after reviewing the facts and a number of prior awards and treatises, sustained the grievance. He first concluded that the Company had waived any reliance on the Union's delayed appeal to arbitration. He observed:

In thus matter, the Company fully participated in meetings after the Step 3, in selecting the arbitrator, and in establishing a place, time, and date for the hearing without mention of a procedural defect in the processing of the Grievance. Therefore, the conclusion is that the Company accepted the grievance and waive[d] its challenge to the Grievance procedural arbitrability.

On the merits, the Arbitrator found

In this matter, [Grievant] was not specific; he did not direct his words at anyone; no one considered his words to "be threatening", even his supervisor; no one called the police; he was not sent home immediately; he apologized for making the statements a short time after he made the statement. [Grievant] could not explain what he meant because it was a "stupid" comment, but short of a threatening comment.

Peco sought to vacate the award, both as beyond the jurisdiction of the arbitrator because of the Union's untimely appeal and as contrary to "public policy against violence and threatening behavior in the workplace." The District Court (here) and now the Eleventh Circuit (here) rejected these efforts. Both found that the decision concerning the Employer's waiver of the time limits to be within the authority of the arbitrator. The Eleventh Circuit concluded:

We therefore agree with the district court that the arbitrator was acting within his broad discretion to interpret and apply the terms of the Agreement in concluding that Peco waived its challenge through its conduct. See, e.g., Mosher Steel, 796 F.2d at 1366 (courts must "uphold an arbitrable award that is premised on the arbitrator's construction of the contract and his understanding of the intent of the parties") (quoting Drummond, 748 F.2d at 1497).

  Both the District Court and the Eleventh Circuit also rejected the Employer's public policy claim, noting that the Arbitrator had found that no "threat" had taken place.  On  this point, the Circuit noted:

Peco's public policy argument rests entirely upon its assertion that [Grievant's] comment about "throwing lead" was a threat of workplace violence. But the arbitrator found that [Grievant's] statement was not a threat of violence, and this Court is not permitted to second-guess the arbitrator's findings of fact. ...  That is because "[t]he parties did not bargain for the facts to be found by a court, but by an arbitrator chosen by them." ... Nor are we permitted to second guess the arbitrator's findings of fact merely because we are "inquiring into a possible violation of public policy."

While upholding the arbitrator's award, the Court refused the Union's request for attorney fees, finding the Company's appeal meritless but not frivolous.

Arbitrator Holley's award can be found here.

Police use of force - arbitrator reinstates officer who "stomped" on suspect

On April 8 2017 Grievant arrived on the scene of another officer attempting to subdue a fleeing subject. According to the grievant, he observed the officer "wrestling" with the subject, flipping him on to his stomach and attempting to handcuff him. Grievant stated that one of the subject's hands was cuffed, but the other was free and the subject was continuing to resist. Coming to the aid of the officer, grievant "took his left foot and stomped down on [the subject's] left shoulder area to pin him to the ground." Grievant subsequently stated the he believed his actions were necessary because of the information he had received that the subject was armed and that shots had been fired in the area. The subject was arrested and, pursuant to Department policy, grievant filed a Use of Force Report. A Department Sergeant conducted an investigation, which including viewing a video that  had been taken of the incident  She found grievant's actions within Department policy. She noted that once the subject was secured grievant did not followup with any additional strikes. She also noted that the video was inconclusive as to whether grievant's boot actually made contact with grievants face. Grievant's Sergeant, Lieutenant and a Commander also concluded that, while there may have been other issues which should be reviewed with grievant he had not used excessive force. Review continued up the chain of command, with the Deputy Chief disagreeing with the conclusion that grievant's actions were within policy. The matter moved to the Chief who held a hearing, affirmed the Deputy Chief's conclusion that grievant had used excessive force, and determined that a 24 hour (three day) suspension was warranted. A further hearing was then held before the Director of Public Safety who issued a final decision, not accepting the Chief's recommendation concerning a suspension but raising the discipline to termination.

The termination was grieved, and the matter was submitted to Arbitrator Mitchell Goldberg.

Arbitrator Goldberg sustained the grievance in part.  He found grievant used excessive force:

It is clear, however, that the Grievant’s stomp or kick to the upper shoulder area with sufficient force to cause the momentum of the leg or foot to contact the suspect’s neck and head area is an untrained technique. Moreover, I find from the evidence, that because the Grievant had other less-excessive force options available to him, his use of an untrained technique amounted to excessive force that was a violation of policy, directives and the law.

 However, Arbitrator Goldberg also found termination too severe a penalty. He found that the grievant had been genuinely  concerned about the other officer's safety and that grievant believed that the application of force was required because the subject was armed and needed to be cuffed to prevent harm to others. He concluded that while grievant used more force than was necessary he had no intent to injure the subject. Contrary to the Director of Public Safety, Arbitrator Goldberg further found no evidence that grievant had engaged in any deliberate deception or coverup about his use of force. He noted that grievant "chose to stand by his original, but later established misguided and misjudged response to his perception." Finding termination unwarranted, Arbitrator Goldberg observed:

I find that the Grievant’s past good work record, and his performance at the highest rewarded level, combined with his intelligence level, is persuasive evidence that he has the ability to adjust his actions to conform with policies and directives in the future as they relate to his use of force in bringing dangerous suspects under control. I agree with the Chief’s finding that his use of an untrained level of force in this situation justified serious discipline that warranted an out of sequence penalty, but not the most severe penalty of a termination from his employment.

  
Accordingly he reduced the termination to a three day suspension, the penalty initially considered appropriate by the Chief. 

Arbitrator Goldberg's award can be found here. The report of the award in the Columbus Dispatch  links to a video of the incident here.

Same sex marriage, timeliness of a grievance and election of benefits

The Pennsylvania Commonwealth Court has denied the appeal of the Gateway School District seeking to overturn an arbitrator's award allowing a retired teacher to add his spouse to his medical benefits. Gateway School District v. Gateway Education Association

Grievant had retired in June of 2013 after more than thirty years service. While he had been in a same sex relationship for more than seventeen years, he was not allowed to add his partner to his retirement health care benefits. At that time neither the cba nor Pennsylvania law recognized same sex marriages. As a result, grievant elected single coverage. In 2014, after a federal district court in Pennsylvania found the failure to recognize same sex marriages unconstitutional, grievant married has partner. He then requested the School District add his spouse to his retirement health insurance coverage. The District refused, noting that at the time of grievant's retirement the cba had not recognized same sex marriages, and relying on what it claimed was its long standing practice of not allowing changes in a retiree's medical benefits even if the retiree remarried or married for the first time after retirement.  Grievant brought this issue to the teachers union, and a grievance was filed in January 2016.

The grievance was pursued through the grievance/arbitration process and an arbitrator ultimately upheld the grievance. The arbitrator rejected the School District's claims that the grievance was untimely and that past practice supported its decision, The arbitrator concluded that grievant "must be granted the same retiree benefits as other married couples at the District's expense. This would be as if they had elected the same married couple coverage at the time of retirement."

The School District unsuccessfully sought to vacate the award in Common Pleas court, and the Commonwealth Court has now affirmed the lower court's refusal to set aside the award.

Concerning the timeliness issue, the Court noted that the decision on this procedural issue was within the authority of the arbitrator, and that the arbitrator's award  "interpreted the deadlines specified [in the cba] .... to run from such time as it was possible for the Grievant [to] act." The arbitrator had observed that the decision on whether to pursue the grievance took place "in an ever changing legal environment until same-sex  marriage finally became law," and, moreover, the School District had not raised the timeliness issue during the grievance process. Given the limited scope of review of an arbitrator's award, the Court found no basis to overturn that decision. The Court also rejected the School District's argument that the arbitrator had improperly refused to accept the District's past practice argument. The arbitrator had considered but rejected the past practice claim, noting that the change in the law regarding same sex marriage represented a change in the conditions upon which the practice had been based.

Finally, the Court rejected the School District's challenge to the award as contrary to the "impairment of contracts" provision of the US and Pennsylvania constitutions, concluding that the change in circumstances caused by changed constitutional determination by the courts did not alter the parties' contract. The changing legal environment "merely changed Grievant and his partner's legal right to be married, and affected the arbitrator's interpretation of the CBA  ... ."

Accordingly the Court affirmed the lower court's decision, effectively enforcing the award.

Arbitrator Fabian's award can be found here.

Quick Hits: A "toxic" employee, a teacher and a traffic stop, and correcting a mistake

Termination of "toxic" employee upheld

Arbitrator Craig Allen denied the grievance filed on behalf of an employee of the Ohio Department of Natural Resources contesting her termination. The grievant was terminated for two alleged offenses. The first was a time sheet violation. It was alleged that she had left 15 minutes early for lunch but had falsely recorded the departure time on her time sheet. This occured two weeks after she had received a three day suspension, apparently also related to time and attendance policies. The second related to a statement she made when she was being placed on administrative leave for investigation of the time sheet incident. It was essentially undisputed that grievant said during her departure "Don't worry, I'm not going to shoot up the place." The Union contended that management had "dramatically taken out of context" this incident while the employer argued that it was the action of a "defiant employee with disdain for her work place or her co-workers."

Denying the grievance, Arbitrator Craig concluded that the evidence supported the Employer's position. While noting that grievant was upset about a merger of departments that had taken place, he found "the Grievant was a toxic force in the work place." Concerning grievant's comment that "she would not shoot up the place," the Arbitrator found that, while the police officer who was present to escort grievant from the workplace did not find the statement serious enough to file a report, "others viewed it as a threat." Finding the discipline progressive and for just cause, the Arbitrator denied the grievance. His award can be found here.


Tenure charge against teacher who drove away from traffic stop rejected

Arbitrator Ruth Moscovitch rejected the efforts of the Bernards Township School District to terminate a teacher for driving off from a traffic stop before being released by the police.

The teacher had briefly left her mother in law in her house while she went to the store. The mother in law had Parkinson's and some dementia. The teacher was in the process of cooking and had gone to the store to pick ups missing ingredient and expected to be home before the timer went off on food she was cooking. On her way home form the store, the teacher was stopped by the local police for speeding. She became agitated and explained that she needed to get home to check on her mother in law. Although the police officer told her she was not free to leave, she sped off and drove toward her home. The police pursued her and forced her to stop. She was handcuffed and placed in the back of the police car. A search of the vehicle turned up a small "one hitter" pipe of the type that could be used to smoke marijuana. The teacher admitted having the pipe but claimed she had found it in the truck her husband used for work and had intended to dispose of it. She was arrested and and charged with eluding, possession of drug paraphernalia and several traffic offenses. After the superintendent saw the video taken by the police of the incident he filed tenure charges against her and sought her termination. Arbitrator Moskovitch found that while the teacher's conduct demonstrated poor judgment and warranted a two month suspension, termination was too severe. She concluded:

There is no dispute about what happened on March 22, 2017: Respondent admits, and the arresting officers’ testimony and videos confirm, that she drove away from police during a traffic stop after being ordered not to do so, and that a metal pipe – of a type the officers identified as used for smoking marijuana – was found in her purse. There is also no dispute that this conduct showed very bad judgment on her part. This was conduct unbecoming a teacher. The issue before me then is whether the District has sustained each and every part of the ten charges brought against Respondent, and whether the proven misconduct warrants the ultimate penalty of loss of Respondent’s tenure as a teaching professional. I find that it does not.

Arbitrator Moscovitch's award can be found here.


Correction of an over 25 year old error not barred by recognition clause

Arbitrator Robert Grey resolved a dispute between the City of Scranton and the Fraternal Order of Police, Lodge No. 2 concerning the question of pension eligibility for hires after July 1, 1998. The precise issue was whether the "new" hires were required to reach the age of 55 before becoming eligible to receive a pension. The factual background of the dispute is lengthy, but, in sum, the issue before the arbitrator was whether the City's effort in 2015 to correct what it claimed was a typographical error in a 1987 Ordinance creating the new plan improperly deprived the Union of the opportunity to bargain a change in benefits. The Union asserted that it had never given final agreement to the 1987 change, and that, in any case, the 1987 ordinance did not contain the age 55 requirement. The City claimed both that the Union had in fact agreed to the change in the plan, and that the omission of the language from the 1987 ordinance was a typographical error.

Arbitrator Grey concluded that the evidence did not support the contention the the Union had finally agree upon the change. However, he found further that, because of legislation passed by the state in 1986, the Ciy was privileged to make a one time change in the pension plan without securing the Union's agreement. The case then turned on whether, as the City maintained, the omission of the age 55 requirement was simply a typographical error or, as the Union argued, the omission of the age 55 requirement had been intentional and the City's recent effort to modify the plan was a unilateral effort to modify the existing plan.

Reviewing the facts, Arbitrator Grey concluded that the omission of the language from the 1987 Ordinance was an inadvertent error, and that the 2015 Ordinance simply corrected the language to reflect the original proposal. Regarding the Union's claim that its members had been prejudiced by the City's actions and its long delay in making a correction he noted:

The Union's arguments of prejudice, for which it had the burden of proof, are not persuasive on the record presented. The Union and its counsel were admittedly aware, ab initio in 1987, that the 1987 Ordinance did not contain the conditionally agreed to minimum age eligibility requirements, nor years of service eligibility requirements. ... It is undisputed that they did not bring this to the attention of the City until 2015. Moreover, there is no record evidence that any bargaining unit unit member detrimentally relied upon the lack of a minimum age eligibility requirement, or years of service eligibility requirement, when applying for, accepting, leaving or remaining in employment the City's Bureau of Police.

Denying the grievance, he concluded:

The City established an Act 205 Revised police pension by enacting the 1987 Ordinance. The record does not support the Union's position that the City intentionally omitted Section 2 from the 1987 Ordinance. ... Because the 2015 Ordinance related back to the ambiguous 1987 Ordinance establishing the revised pension plan, pursuant to Act 205 the 2015 Ordinance was also not subject to bargaining.

Arbitrator Grey's award can be found here.

Termination of police officer for dishonesty overturned, disparate treatment renders discipline excessive

Arbitrator Bruce McIntosh reduced a termination to a six month suspension for a police officer who was alleged to have intentionally defaced a newly painted locker room wall.

Another officer in the locker room heard someone enter and then the sound of someone swiping and scraping at the wall. He walked toward the sound and claimed he saw grievant facing the wall with an object in his hand. The officer claimed he then saw grievant scrape the object across the wall two more times and then state "it's a shame that this new paint is already scratched up."

The officer reported his observations to the Lieutenant who confronted grievant and asked if he knew anything about the marks in the locker room. Grievant denied responsibility but went and wiped the marks off.

A Departmental investigation ensued that included polygraphs of both officers. The polygraph examiner concluded that grievant was found to be deceptive while the other officer was found to be truthful.

Grievant was terminated for violation of Department Orders and Policies for defacing Department property, failing to admit wrongdoing and lying.

Sustaining the grievance in part, Arbitrator McIntosh found that the Department had improperly deprived grievant of certain procedural rights under the cba. However, the arbitrator did find that the Department had established both that grievant had scratched the wall and had falsely denied doing so.  While the department argued that grievant's dishonest denial raised Brady issues warranting his termination, the Arbitrator found that the department had not treated claimed dishonesty in the past as a basis for immediate termination. Arbitrator McIntosh concluded:

Although the Department sustained its burden of proving that Grievant did scratch and mark the locker room wall, the union's evidence of disparate treatment for "dishonesty" was, similarly, persuasive. In September of 2013, an officer was given a written reprimand when it was discovered by a lieutenant that, what  the officer had written could not have been possible since he had not witnessed what he had written. In  July of 2011 another officer was found to have provided a report for a uniform allowance that was not "truthful" and again, in July of 2011, another officer became involved in off-duty conduct but did not truthfully disclose his situation and received an oral reprimand. Reprimands were given to another officer for lying about a domestic situation and, another, for lying because he was embarrassed about a check that was returned for insufficient funds.  Overwhelming evidence of ignoring termination for dishonest conduct was illustrated by one employee who used sick leave formats avoid reporting toward for over a year resulting in forty-eight (48) hours being deducted from his Leave Bank. This conduct was found to be so egregious that it was taken to the Athens County Prosecutor who determined that this conduct was essentially theft in office.  This employee was subsequently given a Last Chance Agreement in December of 2012 and, thereafter, terminated for being in violation of the LCA.
     As previously discussed, the Department has sustained its burden of proof that Grievant defaced the property and denied doing so. As such it was certainly appropriate for the Department to move beyond mere reprimands of progressive discipline. However the disparate treatment given others renders termination excessive. 

The Arbitrator did not specifically address further the Department's Brady claim. Arbitrator McIntosh's award can be found here.

Update: According to a recent article in the AthensNews, grievant testified in a rape prosecution and was questioned about the arbitrator's findings. Alleged victim testifies during continuing rape trial

Teacher improperly allowed "teachable moment" to include discussion of student's discipline with other students

During Thanksgiving week 2016, students at Stoughton, MA High School were engaged in a school project decorating a Spirit Wall. While this activity was underway, one if the students, "F," made a swastika out of masking tape and placed it on a recycling bin. Several students, including one who said she was Jewish, objected. F was reported to have said "Well just burn it like they did to the Jews."

The incident was reported to the Principal and the Dean of Discipline, and F was ultimately suspended.

 On December 1, during F's suspension, grievant was teaching a Senior  Honors English class. At the beginning of the class, the students were discussing the incident involving F. Grievant was not aware of what had taken place or the nature or extent of any discipline imposed on F. F was not in her class, nor were any of the students who had been present during the incident. According to grievant, her knowledge of the dispute came from her students. Given the student's discussion grievant decided to try to turn the discussion to a "teachable moment." She testified she told students that the swastika was a symbol of evil and hate. One of the students informed grievant that F had been suspended for six days. Grievant admittedly participated in the discussion about the length of the discipline, and acknowledged saying that it seemed light. The discussion continued for 10-15 minutes. Realizing that the discussion was not going in the direction she had intended, and that it had become too personal, grievant redirected the class to the day's lesson.

Upon his return from suspension, F informed the principal that he had been told by other students that grievant had made comments about him. On December 13, grievant's mothers filed an Incident Form concerning treatment of her son and complaining about comments she alleged grievant had made to her class. The School Superintendent engaged an outside investigator and, after the conclusion of the investigation, issued a Letter of Reprimand to grievant. The letter stated that grievant had violated a provision of the School's Employee Handbook which provided "As leaders and educators in the Stoughton Public School, we are committed to providing an educational climate that is conducive to student engagement and learning." The Letter was grieved and the dispute was submitted to Arbitrator Beth Anne Wolfson.

Arbitrator Wolfson upheld denied the grievance. She noted:

Grievant's own testimony at the arbitration hearing demonstrated that she engaged in the behavior for which she was disciplined. First, she admitted that when she arrived in her classroom her students were talking about the swastika incident, F's behavior, and his discipline. Second, although she attempted to redirect the discussion into one concerning universal concepts about the swastika she admittedly failed to accomplish this as the student's discussion continued in the context of what F did and what discipline he purportedly received. Third, Grievant admitted she participated in the discussion concerning the length of F's suspension. Accepting as true Grievants statements that she said the discipline seemed light in terms of what had happened to students in other schools does not change then fact that  her comment was made during discussion of a specific student and not in a broader or more general context. Finally, Grievant allowed the discussion F to continue for 10 or 15 minutes when she admittedly should have stopped it sooner.

Arbitrator Wolfson also rejected the arguments of the Teacher's Association that grievant's in-class speech was protected by the First Amendment and that grievant had not violated F's privacy rights, observing:

...the Employer did not discipline Grievant for violating F's privacy rights. It disciplined her for failing to provide the appropriate educational climate, for failing to perform her roles and responsibilities as a teacher, and form failing to exercise sound judgment, all based on her not failing to stop the conversation her class specific to F, but also for joining in.


  Arbitrator Wolfson's award in Stoughton Teachers Association and Stoughton School Committee can be found here.