Opinion
8:99CV505
July, 2000
MEMORANDUM AND ORDER
This matter is before the court on a motion to vacate an arbitrator's award (Filing No. 1) and cross-motions for summary judgment filed by the plaintiff and defendant (Filings No. 5 and 7). I have carefully reviewed the record, motions, briefs and exhibits and find that the arbitrator's award should be affirmed.
Standard of Review
The scope of review of an arbitrator's decision is very narrow. See Alvey, Inc. v. Teamsters Local Union No. 688, 132 F.3d 1209, 1211 (8th Cir. 1997); United Food Commercial Workers, Local No. 88 v. Shop 'N Save Warehouse Foods, Inc., 113 F.3d 893, 894 (8th Cir. 1997). The agreement must be construed broadly, resolving doubts in favor of validity of the agreement. Id. at 895. The arbitrator's award must draw its essence and being from the collective bargaining agreement. See id. Unless the award is not susceptible to the interpretation given to it by the arbitrator, the reviewing court cannot interfere with the award. See Kewanee Machinery Div v. Local Union No. 21, 593 F.2d 314, 318 (8th Cir. 1979). This is true even if the award by the arbitrator rests on errors of fact or on misinterpretations of the contract. Alvey, at 1211.
"An arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice." United Steelworkers v. Enterprise Wheel and Car Corp., 363 U.S. 593, 597 (1960). The arbitrator cannot amend the contract, although he can look to outside sources to aid in interpreting it. See Keebler Co. v. Milk Drivers and Dairy Employees Union, 80 F.3d 284, 288 (8th Cir. 1996). Federal policy strongly favors arbitration. See United Paperworkers Int'l Union v. Misco, 484 U.S. 29, 37 (1987). "Because the parties have contracted to have disputes settled by an arbitrator chosen by them rather than by a judge, it is the arbitrator's view of the facts and the meaning of the contract that they have agreed to accept." Id. at 37-38. Even if the court is convinced that error has occurred, the decision of the arbitrator cannot be overturned if he acted within the scope of his authority and is construing or applying the contract. Id. at 38.
Arbitrator's Decision
The arbitrator held a hearing on September 10, 1999, took testimony from witnesses with both examination and cross-examination by counsel, received exhibits into evidence, and allowed post-trial briefs. The grievance before the arbitrator challenged the refusal to renew the teaching contract of Michael Mullins (hereinafter Grievant) for the 1999-2000 school year.
The dispute arose under a collective bargaining agreement (hereinafter Agreement) between Boys Town Educational Association (hereinafter Association) and Father Flanagan's Boys Home (hereinafter the Home). The parties agreed that the issue to be decided by the arbitrator was: "Whether Grievant's termination was proper under the Agreement; and, if not, what is the appropriate remedy?" The relevant facts as developed at the hearing are set forth below.
The arbitrator first set forth the history and purpose of Boys Town. He then found that evaluation is a key component of the Boys Town program. Students are asked to evaluate nearly all components of their Boys Town experience, including those experiences with classroom teachers. The Home published a revised edition of Scales for Effective Teaching (hereinafter Scales) which is a manual for supervisory evaluation of teachers. As stated by the arbitrator:
The document sets the most important goals of staff supervision as assuring and building program effectiveness. A multi-source evaluation process identifies competencies, deficiencies and areas to enhance effectiveness. Performance standards are set jointly through mutual agreement and cooperation through Teachers and Administrators. The manual states that educational results, evaluation and accountability are complex and require a data-based approach; and:
Evaluation of classroom instruction requires that a teacher's methods and their effects are considered; multiple approaches to measurement are needed.
In [ Scales] permanent product data, self report measures, consumer feedback, and direct observation each contribute unique information to the evaluation. When the results of a variety of measures converge, conclusions can be drawn with a reasonable degree of confidence.
[ Scales] is designed to promote accountability by producing objective, externally defensible data about teacher performance as well as descriptive information which illuminates teachers' competencies and skill deficiencies.
[ Scales] defines eleven teaching areas: (1) Student Satisfaction; (2) Family-Teacher Satisfaction; (3) Teaching Social Behavior; (4) Learning Outcomes; (5) Teaching to Outcomes; (6) Classroom Management and Academic Learning Time; (7) Student Participation; (8) Reinforcement/Correction of Academic Responses; (9) Assessing, Monitoring, and Adjusting; (10) Communication; and (11) Professionalism. Scales says that multiple measures are used so conclusions can be drawn with reasonable confidence. Measures used to assess teacher effectiveness include reviews of permanent products, self-report, interviews, consumer questionnaires and formal and informal observations.
Scales regards student happiness and adjustment as components for student success and states that pleasant, relevant and interesting schools produce productive learners. Such attitudes are determined from student interviews, informal observation and formal classroom observation. Sample indicators are class smiles/laughter, positive statements about class, voluntary class participation, student classroom attention, greetings and departures from Teachers and student contacts with Administrators about Teachers.
In interviews students are asked to rate their satisfaction with the Teacher's fairness, concern, pleasantness, academic and social skills help and the ability to make class interesting, together with their perceived progress and the degree they are taught useful skills. Since 1987, students have completed a written survey for classroom Teachers under rather structured circumstances. The questions on the survey have changed from time to time. The evaluation questions and procedures have not been validated or subjected to outside review. Presently, students give a numerical response to a number of questions about "how satisfied are you" about "this teacher." The number scale is 7-Completely Satisfied; 6-Satisfied; 5-Slightly Satisfied; 4-Neither Satisfied Nor Dissatisfied; 3-Slightly Dissatisfied; 2-Dissatisfied; 1-Completely Dissatisfied; and 0-Cannot Rate. The form provides space to write a comment about each rating and, at the end, asks a general question about how this Teacher can make the class more interesting and helpful. Typically, Teachers' overall mean student ratings are at least 6.0 which is the minimum "passing" score.
(Arbitrator's Decision, at pp. 7-9)
The Grievant has been employed by the Home since 1984 as an English teacher. In January 1999, Grievant was presented the results of a fall 1998 evaluation of him. Grievant had met or exceeded the required 6.0 score in ten of the eleven categories, including Family Teacher Summary (6.50), Teacher Summary (6.97), and Administrative Summary, where he received a 7 in eight of the categories. A "7" is the highest score possible. However, in the fall of 1998 the Grievant was evaluated by the students in two of his classes. He received a mean average score of 5.57. He was then told that he would again be evaluated in March 1999, and if his score was below 6.0 he would not be recommended for employment for the 1999-2000 school year. The Grievant responded with the instructional and classroom changes he would implement before the next evaluation. It appears that Grievant did implement the agreed upon changes and sought suggestions and support from others.
On March 31, twenty-one students completed a Student Evaluation in two of the Grievant's classes. This time the mean student evaluation was 5.74. His score had improved, as had his lowest subset "makes class more interesting." He did not receive the 6.0 score set by the Home. He was not recommended for employment for the 1999-2000 school year. The sole basis for the nonrenewal was the student evaluations. It appears the other outstanding ten scores were ignored.
Grievant went through the required informal process. The parties stipulated that only the last two evaluations were relevant to the arbitration proceeding. Testimony was elicited that students took the evaluations seriously. Richard Lohmeier (Principal) testified that Grievant "ran a structured, well-organized class where students behaved and participated with few problems;" (Arbitrator's Decision, at p. 12). He further testified that Grievant had a reputation for being repetitive and boring and sometimes had problems with building positive relationships. And finally, he testified that "the progress of Grievant's students is grossly equivalent to other Teachers." Id.
The arbitrator found that this was not a "cause" discharge but was instead a non-renewal under § 8.9 and § 8.10. Sections 8.9 and 8.10 allow the Home to not renew at its "sole option" if (1) the teacher receives two consecutive unsatisfactory performance evaluations; (2) appropriate procedures are followed; and (3) the actions of the Home are not "in bad faith, arbitrary and capricious." The arbitrator further found:
Here, the Home did not act in bad faith. No one felt animus toward Grievant or was motivated by any invidious reason. Instead, Lohmeier and other Administrators appeared objective, professional and involved. Still, it is arbitrary and capricious to use a mean score from a non-validated, written student evaluation about their degree of "satisfaction" as the sole determinant for non-renewal of a long term Teacher who demonstrates a willingness to modify his methods to enhance student acceptance.
The core defect is not the Home's professional judgment about Grievant but the fact that it ceded that judgment exclusively to an anonymous, non-validated student questionnaire. Under the circumstances, the Home violated § 8.10 because the evaluation instruments and procedures it used to deny Grievant a contract are unreasonable and contrary to its promises in the Agreement and Scales.
(Arbitrator's Decision, at pp. 18-19)
The arbitrator then discussed the fine lines between the categories of answers that the students could choose and how little that measured Teacher's performance. As further stated by the Arbitrator:
Article VIII speaks directly and in detail to Teacher evaluations. Yet, there is no mention of student evaluation in relation to non-renewal. Instead, the Agreement contemplates certain formal and informal evaluations and conferences by educational professionals resulting in an evaluation report. While the language does not foreclose professional evaluators from using student evaluations as a touchstone during their professional review, it does not let them ignore their own favorable ratings or avoid their contractual obligation by basing non-renewal decisions solely on written student surveys about "satisfaction" levels.
Scales and other internal Home documents acknowledge that Teacher evaluations are too complex and uncertain to be left to a single source without safeguards. In fact, when Family Teachers receive unfavorable student evaluations, in-person student interviews are recommended in addition to examining other sources. In Grievant's case, there was no follow-up. To the contrary, the Home's trained, professional, adult evaluators ignored their own observations, judgements and scores in favor of a few unknown, unformed and unaccomplished youngsters. This is not a reasoned, rational basis for ending the career of a long-term teacher.
(Arbitrator's Decision, at p. 20) The arbitrator found for the Grievant, ordered him reinstated, and ordered back pay and benefits. The Home appealed to this Court.
The Home
The Home argued that pursuant to § 8.9 of the Agreement it has the "sole option" to refuse renewal of the contract after two unacceptable performance evaluations. Further, argues the Home, the evaluation standards are in the exclusive discretion of management pursuant to § 2.1 of the Agreement. In addition the Home contends that the use of evaluations, and particularly student evaluations, is an integral part of the environment and focus of the Home.
Grievant
The Association argues first that the Home had no "cause" to discharge him and second, in any event the decision to not renew him was arbitrary, capricious and in bad faith in violation of § 6.8 of the Agreement. The expert evidently testified that the student evaluation instrument had not been validated and that student evaluations are inherently unreliable, which the Grievant contends are further exacerbated by students who are socially, academically and intellectually underdeveloped. Students were not informed that "6" was passing. In addition, the administration controls the curriculum, not the teacher. The Agreement provides for formal and informal observations, but it does not mention student evaluations. That was the only assessment tool that was used to deny the Grievant his continued contract.
Review of Arbitrator's Decision
Although I may not agree with all the conclusions drawn by the arbitrator, I find that the decision of the arbitrator in the case before me "draws its essence from the collective bargaining agreement." Alvey, 132 F.3d 1209, 1211. Section 2.1 of the Agreement does give the Home the exclusive right to evaluate employees. Section 8.9 allows the Home to refuse to renew a contract when the teacher has "an unsatisfactory performance evaluation on two (2) consecutive Evaluations." However, the decisions regarding evaluation are subject to the grievance procedure if they are in bad faith, arbitrary and capricious. (Section 8.10)
The arbitrator looked to Scales for guidance. It is clear that Scales is intended to be the definitive tool for teacher evaluation and assessment. Scales clearly requires multiple approaches to teacher assessment. Grievant's scores on ten of the eleven assessments clearly met or exceeded the requirements. Although his November 1998 consumer assessment was lower than 6.0, a plan of improvement was created, implemented, and his consumer assessment in March 1999 improved, although it did not reach the 6.0 level. Under the Scales criteria, multiple assessments must be used. However, in the case of the Grievant, the only assessment tool that was relied upon was the consumer evaluations. Section 8.10 specifically states that the evaluation procedures and instruments used are subject to the bad faith, arbitrary and capricious standards. The arbitrator's finding that use of only the consumer assessment was arbitrary and capricious is supported by the Agreement.
THEREFORE, IT IS ORDERED ADJUDGED AND DECREED, that
1. The judgment of the arbitrator is affirmed;
2. The motion to vacate the arbitrator's award (Filing No. 1) is denied;
3. The motion for summary judgment filed by the plaintiff (Filing No. 5) is denied;
4. The motion for summary judgment filed by the defendant (Filing No. 7) is granted;
5. A separate judgment in favor of the defendant will be entered.
JUDGMENT
Pursuant to the Memorandum and Order entered on this date, judgment is entered in favor of the defendant and against the plaintiff.
DATED this ___ day of July, 2000.