DECISIONS

Decision Information

Decision Content

Wellpinit School District

And

Wellpinit Education Association

Fact Findings

Arbitrator:      Katrina Boedecker

Date Issued:   08/21/1991

 

 

Arbitrator:         Boedecker; Katrina

Case #:              8838-F-90-162

Employer:          Wellpinit School District

Union:                Wellpinit Education Association

Date Issued:     08/21/1991

 

 

BEFORE THE FACT-FINDER

 

In the matter of the request of:                                 )

                                                                                    )

 WELLPINIT SCHOOL DISTRICT                        )

                                                                                    )           CASE 8838-F-90-162                        

For fact-finding involving a                            )

bargaining unit of certificated                                   )           FINDINGS OF FACT

employees represented by:                                       )                       AND

                                                                                    )           RECOMMENDATIONS

WELLPINIT EDUCATION ASSOCIATION         )

 _____________________________________         )

 

 

            Associated Industries of the Inland Empire, by William                                                                             Donohue, Attorney at Law, appeared on behalf of the district.

 

            Gary Simpson, UniServ Field Representative, appeared on

            behalf of the association.

 

On August 20, 1990, the Wellpinit School District notified the

Public Employment Relations Commission that the Wellpinit Education

Association had rejected the district's last and final offer for

settlement made in mediation, and requested the Commission to

institute fact-finding proceedings under RCW 41.59.120. A fact-

finding hearing was held in Spokane, Washington, on June 12, 1991,1

before Fact-finder Katrina I. Boedecker. The parties made oral

closing arguments at the hearing, in lieu of post-hearing briefs.

_____________

            1           The parties were allowed additional time for negotiations

                        and mediation after the request for fact-finding was filed;

                        hence the delay in presenting the issues at a fact-finding hearing.

 

BACKGROUND

 

Wellpinit School District is located entirely on the Spokane Indian

Reservation. The Reservation is in Stevens County in the eastern

portion of Washington state. In the 1990-91 school year, 238

students were enrolled in its educational program: 80 students in

the senior level grades: the remainder in the preschool through

elementary grades. Ninety-nine percent of the students are Native

Indian ancestry and live on the Reservation. The school district

employs 19 certificated staff and 25 classified staff at its one,

and only, school site.

 

Wellpinit, itself, is an unincorporated town of less than 1000

population. Most of the land in the district is held in trust for

members of the Spokane Indian Tribe. In the school district, there

are only 8 to 11 real estate parcels that are subject to property

taxes which would be impacted by a school district tax levy or bond

authority.

 

Approximately 95% of the certificated staff lives outside of the

school district. Due to a lack of available housing close to the

district, most of the staff live in the vicinity of the city of

Spokane. This creates a 45 minute to an hour and 15 minute

commute, one way. Many of the teachers car-pool together.

 

Wellpinit School District receives most of its money from four

sources. Approximately one-third of its budget is funded by

federal "impact aid" under PL 874. In 1990 - 1991, the district

received $1.2 million in state appropriations and $147,000 in

special education funds. The rest of its budget is funded by other

federal grant monies.

 

The last collective bargaining agreement which the parties had

covered the period 1987 - 1988. Consequently, the certificated

staff has not received a negotiated pay increase since September 1,

1987. On November 13, 1989, the Wellpinit Education Association

made a formal written proposal to the district in response to a

proposal it had received from the employer. On April 19, 1990,

Jerry Hombel, president of the Wellpinit Education Association, and

School Board Chairman Jeff Moyer met and negotiated an agreement on

most of the issues.

 

On July 1, 1990, Reid Riedlinger replaced Jess Cruzen as the

district superintendent.

 

ISSUES

 

During the course of the fact-finding hearing, the parties

presented 16 issues on which they were at impasse. 2

______________

            2           Although some certificated staff had been expected to attend the hearing, none chose to                         do so. The record consists of testimony from superintendent Riedlinger, Board                         Chairman Moyer, and Board Member Larry Brown, for the employer's case; and from                         UniServ Directors Jim Aucutt and Gary Simpson, for the association's case.

 

                        The majority of both parties' positions on the issues was put on the record by Moyer.                Simpson did testify that Moyer had accurately represented the association's proposals                         and responses. Throughout this fact-finding report, the language of the 1987-88 contract                       is quoted exactly as it appears in the copy submitted in evidence. Typographical and                 other apparent errors have been corrected in the language recommended by the                                    fact-finder for resolution of each issue.

 

ISSUE ONE: TEACHER CONTRACTS

 

 (1987-88 language) Section 2.2.1:3

 

                        1.         Individual contracts for regular teaching

                        assignments shall be in conformit with

                        Washington State Law and Policies, this

                        Agreement, rules and regulations of the District,

                        and of the State Board of Education Code of

                        Rules and Regulations, Chapter 44, as

                        covered in the Appendix H attached hereto

                        and by references incorporated herein.

 

                        2 .        All regular teacher positions in the District will be

                                    filled by certificated employees under contract to

                                    the District.

_____________

                3.             Throughout this fact-finding report, the language of the

                        1987-88 contract is quoted exactly as it appears in the

                        copy submitted in evidence.  Typographical and other ap-

                        parent errors have been corrected in the language recom-

                        mended by the fact-finder for resolution of each issue.

 

The employer proposed to delete the first paragraph of that

language, on the basis that it recited current law and was

redundant. The employer wanted to amend the next paragraph to

reference the job description of certificated staff.

 

The association found a problem with reference to the job descrip-

tion, because it did not believe one existed in the district.

 

The employer entered the job description for certified teaching

staff into evidence.

 

            FINDINGS OF FACT AND RECOMMENDATION ON TEACHER CONTRACTS

            Since the union voiced no objection to the elimination of the

            first paragraph, and since a job description does exist for

            certificated staff, your fact-finder recommends: The parties

            ratify the following language:

 

                        Section 2.2.1 - Teacher Contracts

 

                        All regular teacher positions in the District will

be filled by certificated employees under contract

to the District and the certificated employees

shall meet the requirements of the Certificated

Teacher Job Description of the District.

 

ISSUE TWO: GENERAL PROVISIONS

(1987-88 language) Section 2.2.2 :

 

                        1.         The salary schedule shall apply to all

                                    regular teachers now employed under

                                    annual teaching contract.

                                    ...

                        3 .        Salary schedule placement shall be in

                                    accordance with the following criteria:

 

                        a.         Evidence of experience as a teacher in this

                                    District or another, so long as the experience

                                    is funded by LEAP. The superintendent may,

                                    at his discretion, require verification of prior experience.

 

                        b.         Evidence of credits from an accredited college or

                                    university. The superintendent may, at his discretion,

                                    require verification of all credits earned/received.

 

                        c.         For all teachers newly employed on or

                                                after the effective date of this Agreement, placement

                                                in the appropriate column for educational experience

                                                shall be determined    by the number of quarter-hours

                                                (1/4) credits acquired after attainment of a Bachelor

                                                of Arts/Science degree. After the date referenced

                                                above, no pre-BA/BS credits will be recognized for

                                                salary schedule placement.

                                    . . .

                                    h.         The Extra Duty Pay Program shall be contained in

                                                Appendix B attached hereto, and by reference

                                                incorporated herein.

 

The employer proposed specifying that the salary schedule would be

in effect for one year only, since the district gets notice from

the state on a year-by-year basis as to what salary monies the

certificated staff is entitled. additionally, the employer desired

to change the discretionary verification of credits earned to a

mandatory verification. Finally, the employer wanted the right to

revise the Extra Duty Pay salary schedule whenever it determined

the need and to issue other "rider contracts" for additional

salaries, without bargaining.

 

The union advanced that the salary schedule and placement, as well

as the extra-curricular pay schedule, were its major priorities.

The union was not agreeable to waive any of its bargaining rights

in the wage area.

 

            FINDINGS OF FACT AND RECOMMENDATION ON GENERAL PROVISIONS

            Wages are clearly a mandatory subject of bargaining. A waiver

            in a mandatory bargaining area is a serious matter and the

employer has not advanced sufficient rationale to have the

requested waivers granted. Public school districts statewide

have multi-year collective bargaining agreements and also only

get once a year money allocations. Your fact-finder recom-

mends that the parties: Maintain the Section 2.2.2 - General

Provisions language of their 1987-88 collective bargaining

agreement.

 

ISSUE THREE: PAYROLL DEDUCTIONS

(1987-88 language) Section 2.3:

 

      2.         On or before November 15th of each school year, the

                  Association shall give written notice to the Board of

                  the dollar amount of dues and assessments that are

                  to be deducted from Association members who have

                  authorized such deduction in the coming school year

                  under payroll deduction. The total for these deductions

                  shall not be subject to change during the school year.

 

The employer sought language that would allow a bargaining unit

member who had committed to dues deduction for the entire school

year to cease the payroll deduction at any time.

 

The union opposed any change in the language.

 

            FINDINGS OF FACT AND RECOMMENDATION ON PAYROLL DEDUCTIONS

Fixed payroll deductions of union dues are traditionally a

sensitive subject in bargaining. These parties have previous-

ly agreed to a modified maintenance of membership arrangement.

Once the union obtains such language, the employer is hard-

pressed to remove those rights without substantial justifica-

tion. The employer advanced no rationale for its proposal

here. Your fact-finder recommends that the parties: Maintain

the section 2.3 - Payroll Deductions language of their 1987-88

collective bargaining agreement..

 

ISSUE FOUR: VOLUNTARY TRANSFERS

(1987-88 language) Section 2.9.2:

 

Not later than May 15th of each school year, the superintendent or his/her designee shall

post in all school buildings a list of the known vacancies which will occur during the following school year. Vacancies that occur after May 15th shall be posted in all school buildings and the District office. Teachers who desire a change in specialty, grade and/or subject assignment or who desire transfer to another building shall file a written statement of such desire with the superintendent not later than February 15th or with five (5) days after the superintendent has posted a vacancy. Such statement will include the specialty, grade and/or subject to which the teacher desires to be assigned and the school or schools to which he/she desires to be transferred, in order of preference. Such

                        written statements must be renewed on an annual basis if the teacher desires continued                         consideration.

 

Said notice of vacancy or new position shall clearly set forth the qualifications for the position and the procedures for applying. The District shall publicize within the bargaining unit for five (5) days the availability of vacancy or new position covered by this Agreement, except where circumstances will not

permit.

 

All vacancies or new positions shall be filled on the basis of qualifications for the posi- tion, as determined by the District. Existing employees shall be considered for the posi- tions if deemed qualified by the Board. If there is more than one such applicant, then District seniority shall be considered. The District shall have the right to assign sub- stitutes or otherwise fill vacancies and new positions that occur during the school year.

 

                        At least thirty (30) days prior to the beginning of the school year, the superintendent or                         his/her designee shall, if requested by the employee, notify by personal conference (and

                        in writing, if requested) of the reason why his/her request for reassignment and/or trans-                         fer was not granted..

 

The employer proposed to delete the entire section, and to

substitute language in which the district would retain the sole

authority to assign and transfer employees.

 

Neither party stated the union's position on this subject.

 

            FINDINGS OF FACT AND RECOMMENDATION ON VOLUNTARY TRANSFERS

The 1987-88 language provides a reasonable structure in which

each party can function in the event of a vacancy or a new

position. At the same time, the language gives the Superin-

tendent and Board substantial discretion in granting trans-

fers. The employer has not advanced sufficient reasons to

alter the language previously agreed upon. Your fact-finder

recommends that the parties: Maintain the Section 2.9.2 -

Voluntary Transfers language of the 1987-88 collective bar-

gaining agreement.

 

ISSUE FIVE: INVOLUNTARY TRANSFERS AND REASSIGNMENTS

(1987-88 language) Section 2.9.3:

 

Notice of an involuntary transfer or reassign-

ment will be given to teachers as soon as

practicable and, except in cases of emergency,

not later than June 15, prior to implementing an

involuntary transfer, the District shall discuss the

transfer with the affected employee and shall

consider the employee's concerns, provided that

the employee is available. The District shall continue

to have the exclusive right to transfer staff, as

necessary, for the benefit of the educational program.

 

The employer proposed to eliminate the date reference, reasoning

that it is not practical to assign all employees in the spring of

a preceding school year. The employer cited its experience of the

last two school years, when it had to assign a teacher the day

before school started.

 

Neither party stated the union's position on this subject.

 

FINDINGS OF FACT AND RECOMMENDATION ON INVOLUNTARY TRANSFERS

AND REASSIGNMENTS An involuntary transfer can have a major

effect on an employee's overall job performance and satisfac-

tion. Nothing in the existing language seems to unduly

restrict the employer in filling vacancies. There was no

evidence that the union had grieved the actions of filling

certain teaching positions the day before school started in

the previous two years. The language does allow for excep-

tions to the June notification in "cases of emergency". The

employer has not advanced persuasive justification for its

proposal. Your fact-finder recommends that the parties:

Maintain the Section 2.9.3 - Involuntary Transfers and

Reassignments language of their 1987-88 collective bargaining

agreement.

 

ISSUE SIX: COVERING CLASSES

(1987-88 language) Section 2.10:

 

                        The building principal is responsible to see

                        that all classes are covered at all times.

 

                        Any arrangements made for class coverage

                        between employees must have prior approval

                        of the building principal.

 

                        The District shall provide substitutes where

                        needed (in the judgment of the District), when

                        practical, and if substitutes are available, for

                        any employee who is absent due to illness or injury.

 

                        Absences for other purposes will usually be covered

                        by a substitute (provided that one is available), except

                        when the absence is for a short period of time

                        (1/2 day or less) and the hiring of a substitute is not

                         feasible by the building principal.

 

                        In an emergency it may be necessary to use other

                        staff members to cover classes.

 

The union wanted to remedy what it saw as a problem with the

language: The employer could demand that other bargaining unit

members forfeit their preparation periods all day long to provide

a "rolling substitute" for an absent teacher instead of hiring a

substitute for the entire day.

 

The employer wanted to maintain some language that would allow it

to use other staff members to cover classrooms if substitutes were

not available or accessible for assignment.

 

FINDINGS OF FACT AND RECOMMENDATION ON COVERING CLASSES

There was no evidence presented of any grievances filed

regarding this language or, in fact, of any specific problem

associated with the practice in this area. Therefore, is

unclear whether the union is proposing to fix an area where

there has been perceived abuse, or is merely trying to stem

potential abuse.

 

The language proposed by the employer eliminates the dis-

trict's discretion to decide whether or not to hire a substi-

tute, and would have another bargaining unit member cover a

classroom only if a substitute was "not" available or accessi-

ble". Your fact-finder recommends: The Parties should ratify

the following language:

 

                        Section 2.13 - Covering Classes

 

The Building Principal/Designee is responsible to

see that all classes are covered at all times. The

teachers are responsible to assure students are

supervised at all times when assigned a classroom.

 

In some cases it may be necessary to use other

staff members to cover classrooms, if substitutes

are not available or accessible for assignment.

 

ISSUE SEVEN: LENGTH OF WORKDAY

(1987-88 language) Section 2.11:

 

All certificated teachers may be assigned appropriate

starting and dismissal time, providing that their total

workday shall be no longer than seven hours and forty

minutes including a continuous thirty (30) minute duty

free lunch period. Employees shall report to work thirty

(30) minutes before the regular school day begins and

continue to work thirty (30) minutes after the regular

school day ends. The length of the assigned workday

shall be considered a normal day of instruction of children.

 An employee may, upon receipt of permission from his/her

building principal, leave directly after the close of school.

 

The employer specifies several problems with the workday language.

Parents who work during the day have not been able to have

parent/teacher conferences in the evening. The district has not

been able to enlist certificated staff to participate in, or

attend, certain educational programs of the district. The district

advances language that would allow it to require the certificated

staff to work, outside the 7 hour and 40 minute day, on: Class

preparation, consulting with students and parents, curriculum

development committees, extra-curricular activities and anything

else that pertains to the district's goals. There is no

hour/minute definition of the workday in the employer's language.

The district does acknowledge that, due to the housing shortage in

the immediate vicinity of the school district, most of its teachers

are commuting 60 to 90 minutes each way in car-pools..

 

In a written proposal dated November 13, 1989, the union proposed

changing the workday to 7 hours and 30 minutes, since that was the

area standard in other certificated bargaining agreements. 4

 

            FINDINGS OF FACT AND RECOMMENDATION ON LENGTH OF WORKDAY

It is not unusual in the education realm to have certificated

staff attend to duties beyond the stated workday. However,

the employer's proposal appears to give it carte blanche as to

the number of occasions, length of time, and purposes for

which it could require staff to extend the workday. There is

            no reference to overtime payment in the employer's language,

            although the board president did testify to giving "traded

            time" later to teachers who worked beyond the normal workday.

____________

            4           On January 30, 1991, local members of the bargaining unit met with the employer,                                 without the UniServ representative present. At that time, the employees made the                                 following proposal to the employer:

 

Each teacher will work an extra twenty hours a

year:  This twenty hours will be working at

after-school and weekend activities. Activities

will consist of: Sporting Events: Ticket-taking,

working of game clock or score board, working

concessions; Class and School Fund Raisers: dan-

ces, bake sales, school carnival, etc; Commit-

tees needed to help better the school; School Plays

and Programs; and Field Trips.

 

The teachers will have the choice of signing up for

these activities. Each teacher will have served 10

hours by the end of the first semester. All twenty

hours will be served on or before the last day of

school. With the current number of staff members

this would provide 360 hours each year for extra

curricular activities.

 

At the fact-finding hearing, the UniServ representative

objected to the introduction of this proposal, because

he was unaware of the offer and was only authorized to

advocate for the proposals of which he had knowledge.

additionally, he argued that it was merely an informal

proposal and since it did not settle the issue it should

not be considered. Since no local bargaining unit members

appeared at the hearing, the union's official position continues

to be changing the work day to 7 hours and 30 minutes.

____

 

Some of the employer's proposed purposes for the overtime work

do not appear to be necessary. The certificated staff should

have adequate class preparation time built into the workweek.

Teachers are required to be available 30 minutes before and

after the student instructional day, in part, to consult with

students when necessary.

 

Curriculum development work and supervising or directing

students in extra-curricular activities are distinct bodies of

work for which bargaining unit members should receive payment

when required to perform.

 

Being present to consult with parents who are unavailable to

attend during the regular workday is a reasonable expectation

for the employer to have of its certificated staff. There are

some school functions, building meetings and informal instruc-

tional activities, not specified on an extra-curricular

schedule, that may also entail additional time beyond the

employee's normal workday.

 

The employer has acknowledged that it had to go far outside

the local area to recruit its staff. Thus, the commuting

problem must be considered. A balance can be struck by

limiting the number of times an employee would be required to

extend the workday. Your fact-finder recommends: The parties

should ratify the following language:

 

            Section 2.11 - Length of Workday

 

All certificated teachers may be assigned appropri-

ate starting and dismissal times, providing that

their total workday shall be no longer than seven

hours and forty minutes including a continuous

thirty (30) minute duty free lunch period. Employ-

ees shall report to work thirty (30) minutes before

the regular school day begins and continue to work

thirty (30) minutes after the regular school day ends.

The length of the assigned workday shall be

considered a normal day of instruction of children.

An employee may, upon receipt of permission from

his/her building principal, leave directly after

the close of school.

 

Outside of the normal workday, employees will

not be required to accept over nine assignments of

supervising student activities, attendance or

participation at school functions (including open-

houses), faculty meetings, parent conferences or

other reasonable duties when appropriate. Assign-

ments will be made in a manner so that no one

person will have an undue share of such duties.

Five of the assignments per teacher, per year, may

be unpaid; for required participation in four other

assignments, each teacher, for each assignment,

shall receive his/her hourly rate for the time

required, or a minimum payment of $35.00, whichever

is greater.

 

Adequate notice will be provided for these assign-

ments: most of these activities shall be specified

by the superintendent or his/her designee on a

sign-up sheet during the first week of each term.

 

With prior, written, mutual agreement between the

teacher and the superintendent or his/her designee,

the teacher may receive hour for hour time off in

lieu of payment.

 

ISSUE EIGHT: LENGTH OF CONTRACT

1987-88 language) Section 2.13:

 

            1.         The length of the regular individual teaching contact

                        shall be one hundred eighty-one (181) days. An

                        extension of contracted days by the District shall

                        be computed on 1/181st of the base amount computed

                        from the current teachers salary schedule.

 

The union proposed a 180-day work year, with 10 additional work

days added at per diem, as follows: 2 days prior to the student

year, 3 days after the student year ended, and 5 days at individual

teacher discretion.  The union argued that Wellpinit was the only

school district in the area that was above a 180-day work year.

 

The employer proposed continuing the 181-day work year. The

employer contended that other districts used local monies when they

reduce the work year and add per diem days. Because the state does

not fund extra days and Wellpinit's lack of levy capacity, the

employer argues that funding extra days would be difficult.

Throughout the hearing, the employer argued that it should not be

compared to other school districts in the state because of the

extreme poverty on the Reservation.

 

FINDINGS OF FACT AND RECOMMENDATION ON LENGTH OF CONTRACT

The union's proposal to add per diem days to the work year is

basically a method of getting more salary money to the

bargaining unit members, albeit from local money instead of

state funds. The employer does have limited taxing ability.

A "salary" issue is dealt with later in this fact-finding

report. Your fact-finder recommends the parties: Maintain

the Section 2.13 - Length of contract language of the 1987-88

collective bargaining agreement.

 

ISSUE NINE: EVALUATION, CERTIFICATED PERSONNEL

(1987-88 language) Section 2.14:

 

General - Members shall be evaluated during each

school year in accordance with the proce-

dures and criteria set forth. Every nonprovi-

sional employee whose work is judged unsatis-

factory based upon the evaluation criteria shall

be placed in a probationary status no later than

February 1 and shall be given until May 1 to

demonstrate im in his/her area or

areas of deficiency.

 

                        Evaluation

                        1.         Responsibility for Evaluation - Within each school

                                    and the principal or his/her administrative/supervisory

                                    designees shall be responsible for the evaluation of

employees assigned to that school. An employee

assigned to two or more schools shall be evaluated

by the principal of each school or by a common

administrative/supervisory designee from the central

staff. If possible, the employee shall be notified in

advance who the evalu- ator(s) will be. The administrative organiza

- tion plan of the school district shall be used to determine

lines of responsibility for any employee who is not regularly

assigned to any school. Any principal or other supervisor

may designate other administrative and/or supervi-

sory staff members to assist in the observation and evaluation process.

 

                        2 .        MINIMUM EVALUATION CRITERIA - All employees shall be

evaluated in accordance with the appropriate criteria

set forth in the evaluation forms attached to this Agreement as

Appendix D, which are hereby made a part of this Agreement.

           

                        3 .        REQUIRED EVALUATIONS -

 

                        a.         All employees newly employed by the School

                                    District shall be evaluated within the first

                                    ninety (90) calendar days of the commencement

                                    of their employment.

 

                        b.         All employees, including new employees,

                                    shall be evaluated annually, such evaluation to be

                                    completed not later than the last day of school.

 

                        c.         If an employee is transferred to another position

                                    not under the supervisor's jurisdiction, an evaluation

                                    shall be made at the time of such transfer.

 

                        d.         If an employee resigns during the school year,

                                    a final evaluation shall be completed prior to the

                                    resignation date. Five (5) school days notice shall be given.

 

                        e.         If the supervisor contemplates recommending that an

                                    employee be placed on probation, an evaluation shall

                                    be made on or before January 15th.

 

                        4 .        Additional EVALUATIONS - In addition to the evaluations

                                    required under paragraph 3 , herein, principals and other

                                    supervisors and their designees may make evaluations

                                    at any time during the school year, which evaluations may

                                    cover individual observations for such period of time as

                                    may be identified in the evaluation report. Any additional

                                    evaluations shall be for the purpose of improving employee

                                    performance except as provided in paragraph 3 .

 

                  5.         MINIMUM OBSERVATION CRITERIA - During each school

                              year each employee shall be observed for the purpose of

                              evaluation at least twice in the performance of his/her assigned

                              duties. Total observation time for each employee for each school

                              year shall be not less than sixty (60) minutes. A minimum of one

                              observation for a total observation time of thirty (30) continuous

                              minutes shall be required in connection with the evaluation of all employees.

 

                        6.         EVALUATION PROCEDURES -

 

a.         Upon completion of an observation for the purpose of evaluation,

            by the principal or other evaluator, the employee shall be provided with a copy of             the evaluation report within three (3 ) working days.

 

                        b.         The employee shall sign the school district's copy of the report . The signature of                                     the employee does not, however, necessarily imply that the employee agrees with                                     the contents of the evaluation report.

 

                        c.         The employee shall have the right to attach any comments to the evaluation report.                                     This may be done at the time the employee received a copy and prior to the                                           report being forwarded to the district personnel office; or they may be forwarded                                     to the personnel office within seven (7) school days following the evaluation                                            conference. Notice of attachment must be given to the superintendent within                                          twenty-four hours of signing the copy of the evaluation report.

 

                        d.         Following the completion of each evaluation report required under paragraph 3 ,                                     here-in, a meeting shall be held between the principal, or other supervisor, and                         the employee to discuss the report.

 

                  e.         In the event that any evaluation report indicates that the employee has                                             performance deficiencies in one or more of the areas defined in the evaluation                     criteria, the principal or other supervisor and the employee shall attempt to                                      develop a mutually agreeable written plan designed to improve the employees                     effectiveness in the deficient areas. In connection with the development of such                               plan, consideration should be given to utilizing the services of available-in-district                            resource persons (e.g. coordinator, department head, psychologist, fellow                                         teacher) to observe the employee's performance and make recommendations                            for im. If the supervisor and employee are unable to agree upon a                                                     mutually acceptable plan, the supervisor will prepare and deliver a plan to the                      employee.

 

                                    PROBATION

 

                                    1.         SUPERVISOR'S REPORT - In the event that a principal or other                                               supervisor determines on the basis of the evaluation criteria that the performance                                     of an employee under his/her supervision is unsatisfactory, the supervisor shall                                     report the same in writing to the Superintendent on or before January 20. The                                        report shall include the following:

 

                                    a.         The evaluation report prepared pursuant to the provisions of paragraph 3                                                 herein.

 

                                    b.         A recommended specific program designed to assist the employee in                                           improving his/her performance.

 

                                    c.         Any written comments by the employee.

                       

                                    2.         ESTABLISHMENT OF PROBATIONARY PERIOD

 

                                    a.         Specific areas of performance deficiencies.

 

                                    b.         A suggested specific program for im.

 

                                    c.         A statement indicating the duration of the probationary period and that the                                                 purpose of the probationary period is to give the employee the opportunity                                                 to demonstrate im in his/her area of deficiency.

 

                                    d.         A statement indicating areas of assistance to be provided by the                                                  supervisory staff.

 

                                    3 . EVALUATION DURING THE PROBATIONARY PERIOD

 

                                    a.         At or about the time of the delivery of a

probationary letter, the principal or other supervisor shall hold a conference with the probationary employee to discuss performance deficiencies and the remedial measures to be taken.

 

                                    b.         During the probationary period the principal or other certificated evaluator                                                 shall meet with the probationary employee at least twice monthly to                                                         supervise and make a written evaluation of the progress, if any, made by                                                 the employee. The provisions of paragraphs 6-a and 6-b, (Evaluation                                                       Procedures) shall apply to the documentation of evaluation reports during                                                 the probationary period.

 

                                    c.         The probationary employee shall be removed from probation at any time                                                 he/she has demonstrated im to the satisfaction of the

principal or other supervisor in those areas specifically detailed in his/her notice of probation. In this event, a statement will be attached to the probationary letter indicating the employee has successfully met the condi- tions of probation.

 

                                    4 .        SUPERVISOR'S POST PROBATION REPORT -

Unless the probationary employee has previously been removed from probation, the principal or other supervisor shall submit a written report to the superintendent at the end of the probationary period, which report shall identify whether the performance of the probationary employee has improved and which shall set forth one of the following recommendations for further action:

 

a.         That the employee has demonstrated suffi-

            cient im to justify the removal of

            the probationary status: or

 

                              b.         That the employee has demonstrated suffi-

                                          cient im to justify the removal of the probationary status of                                                                 accompanied by a letter identifying areas where further

                                          improvement is required; or

 

                                    c.         That the employee has not demonstrated sufficient im and                                                            action should be taken to non-renew the employment contract of the                                                        employee.

 

                                    5.         ACTION BY THE superintendent - Following a review of all reports                                           submitted pursuant to paragraph 4 . The superintendent shall determine                                                 which of the alternative courses of action is proper and shall take                                                            appropriate action to implement such determination. In the event that the                                               superintendent determines that the employee has not demonstrated suffi-                                               cient im, the superintendent shall make a determination of probable cause for the                                     non-renewal of the employee's contract and shall provide written notice thereof to                                     the employee on or before May 15 pursuant to applicable law.

 

                                    6.         IMPLEMENTATION OF THE LAW - Should any conflict arise between this                                          procedure and the law, the law shall be controlling.

 

The employer asserts that it needs to be more definitive about when

each step of the evaluation process will occur. It has advice of

legal counsel that the current procedure does not conform to state

law, in that there are problems with observations versus evalua-

tions, the timelines, and the number of observations required.

 

Neither party stated the union's position on this subject.

 

            FINDINGS OF FACT AND RECOMMENDATION ON EVALUATION,

            CERTIFICATED STAFF      The evaluation criteria and procedures

            proposed by the employer are not uncommon in the education field.

            During the presentation of salary proposals, the employer appeared to

be attempting to use money, instead of the evaluation process,

as a means of improving performance. The employer should be

strongly encouraged to use the evaluation process as the

method for obtaining satisfactory performance, and the

adoption of the employer's proposal in this area will hopeful-

ly provide that encouragement. Although the union voiced no

objection to the employer's evaluation proposal, one substan-

tive change will be recommended in that the employer's

proposal did not include the final paragraph containing the

"supremacy of the law" clause. The employer's proposal

references an evaluation from Appendix E and an evaluator's

guide as Appendix F. Neither appendix was submitted into

evidence. Since the union voiced no objection to any part of

the employer's evaluation proposal, this recommendation

assumes the appendixes will be attached to the parties'

collective bargaining agreement. After living with the

evaluation forms for a year, if the union perceives a problem

with them, it can propose changes during the next regular

contract bargaining between the parties. Your fact-finder

recommends: The parties should ratify the following language:

 

            Section 2.14 - Evaluation, Certificated Personnel

 

            The following cycle and time lines will be observed

            in the certified evaluation process:

 

                        1.         General

 

Certificated employees, for whom the Association is

the authorized bargaining representative, shall be

evaluated during each school year in accordance

with the procedures and criteria hereinafter set

forth.

 

                        2.         Responsibility for Evaluation

 

School administrators/designee shall be responsible

for the evaluation of employees assigned to them.

Evaluation shall be made by the Principal/designee.

Any Principal/designee charged with the responsi-

bility of evaluation of employees may designate

other administrative employees to assist in the

observation and evaluation process.

 

                        3. Evaluation Criteria

 

                        All certificated employees, for whom the Associa-

                        tion is the authorized bargaining representative,

                        shall be evaluated on the following criteria:

 

                        A.        Instructional skill.

 

                        B.        Classroom management.

 

                        C.        Professional preparation and scholarship.

 

                        D.        Knowledge of subject matter taught.

 

                        E.         Handling of student discipline and atten-

                                    dance problems.

 

                        F.         Interest in teaching pupils.

 

                        G.        Effort toward im when needed.

 

                        All evaluations shall be documented on the evalua-

                        tion report form which is attached hereto as (Ap-

pendix E). In completing the evaluation report

form, the evaluator shall utilize the above crite-

ria in the evaluator's guide as set forth in (Ap-

                        pendix F) attached hereto. Evaluations shall be

                        made in narrative form.

 

                        4.         Required Evaluations

 

                        A.        All employees newly employed by the District

                                    shall be evaluated within the first ninety

                                    (90) calendar days after commencement of their employment.

 

                        B.        All employees, including new employees, shall

                                    be evaluated annually, such evaluations shall

                                    be completed not later than the last day of

                                    the year in which the evaluation takes place.

 

                        C.        If an employee is transferred to another position not

                                    under the supervisor's jurisdiction, an evaluation shall

                                    be made at the time of such transfer. A note of

                                    explanation shall be attached explaining the transfer.

 

                        D.        If an employee resigns during the school year,

                                    a final evaluation shall be completed prior to

                                    resignation date.

 

                        E.         If the supervisor contemplates recommending

                                    that an employee be placed on probation, an

                                    evaluation shall be made on or before January

 

                        5.         Other Evaluations

 

                        Principals/designees authorized to make evaluations

                        may make evaluations other than those specifically required

                        at any time during the school year. When    such evaluations ar

                        made in report form, it shall be identified in the evaluation

                        report both as to date, time and length of observation, and shall be

                        discussed with the employee within reasonable time.

 

                        6.         Observation Requirements

 

                        A.        Each certificated employee shall be observed

                                    for the purpose of evaluation at least twice

                                    during each school year in the performance of

                                    assigned duties.

 

                        B.        Observation time for the purpose of evaluation

                                    shall total not less than sixty (60) minutes

                                    during each year.

 

                        C .       Employees newly employed by the District shall be

                                    observed at least once during the first

                                    ninety (90) calendar days of their employment

                                    period for a total observation time of not

                                    less than thirty (30) minutes....

 

                        7.         Evaluation Procedures

 

                        A.        Following each required evaluation observa-

                                    tion, the principal/designee shall promptly

                                    document the results thereof using the appro-

                                    priate evaluation report form (Appendix E).

                                    The employee shall be provided with a copy of

                                    the evaluation report within three (3) days

                                    after such report is prepared.

 

                        B .       The employee shall sign the District's copy of

                                    the evaluation report to indicate receipt of a

                                    copy, provided, however, the signature of the

                                    employee does not indicate agreement with or

                                    approval of the report.

 

                        C.        All evaluation reports shall be promptly

                                    forwarded to the District's personnel office.

 

                        D.        Within three(3) working days after completion

of each required evaluation report, a confer-

ence will be held between the evaluation

supervisor and the employee to discuss the

report. If the employee disagrees with the

report, the employee shall be entitled to add

comments or explanations as he/she deems necessary.

 

                        E.         In the event that an evaluation report indi-

cates that the employee has performance defi-

ciencies in one or more areas defined in the

evaluation criteria, the principal/designee

and the employee shall attempt to develop a

mutually agreeable written plan designed to

 improve the employee's effectiveness in the

deficient areas. In connection with the

development of such plan, consideration shall

be given to utilizing the services available

resource personnel to observe the employee's

performance and make recommendations for

im. (Appendix F)

 

                        8.         Probation

 

                        A.        Supervisor's Report. In the event the

Principal/designee determines that, based on

the evaluation criteria, the performance of

the employee is unsatisfactory, the Principal/

designee shall report the same to the Superin-

tendent on or before January 30. The report shall include:

 

                                                i.          The evaluation report on which

                                    unsatisfactory performance has been based

 

                                                ii.         Identification of specific areas of

                                    deficiency.

 

                                                iii.        A specific and reasonable program

                                    designed to assist the employee in improving

                                    his/her performance and remedying his/her

                                    deficiencies.

 

                        B.        Probationary Period

 

If the superintendent concurs with the super-

visor's judgement that the performance of the

employee is unsatisfactory, the superintendent

shall place the employee in a probationary status

beginning on or before February 1 and

ending on May 1. On or before February 1, the

employee shall be given written notice of the

action of the superintendent, which notice

shall contain the following information:

 

                                                i.          Specific areas of performance defi-

                                    ciencies.

 

                                                ii.         A suggested specific and reasonable

                                    program for im.

 

                                                iii.        A statement indicating the duration

of the probationary period and the purpose of

the probationary period is to give the employ-

ee the opportunity to demonstrate im

in his/her area or areas of deficiency.

 

                        C.        Evaluation During Probation

 

                                                i.          Within five (5) working days after

the delivery of the probationary letter, the

principal/designee shall schedule a personal

conference with the probationary employee to

discuss performance deficiencies and the

remedial measures to be taken.

 

                                                ii.         During the probationary period, the

probationary employee will be evaluated at

least twice monthly by the superintendent/

designee to supervise and make a written

evaluation of the progress made by the employ-

ee, such evaluations shall be documented on

                                    the regular evaluation report form (Appendix

                                    E), in accordance with the procedures set out

                                    in Section 7 Evaluation Procedures.

 

                                                iii.        The probationary employee may be

                                    removed from probation at any time if there

has been demonstrated im to the

satisfaction of the principal/designee in

those areas specifically set forth in the

notice of probation.

 

                                    9.         Implementation of the Law.

 

                        Should any conflict arise between this procedure

                        and the law, the law shall be controlling.

 

ISSUE TEN: FORMAL DISCIPLINARY ACTION

 

(1987-88 language) Section 2.15:

 

                        No employee shall be formally disciplined

                        without just cause. Formal discipline is defined

                        as disciplinary action which results in a written

                        record being placed in the employee's personal file.

 

                        The specific grounds forming the basis for

                        formal disciplinary action will be made avail-

                        able to the employee to the employee in writing.

 

                        Any formal disciplinary action taken against an

                        employee shall be appropriate to the behav-

                        ior or situation which precipitates the action.

 

                        Any employee shall be entitled, upon his/her

                        request, to have present a representative of the

                         teachers during any formal disciplinary action.

                        Any administrator shall be entitled to have a

                        representative of their own choosing during

                        any formal disciplinary action. 

 

                        It is agreed that formal disciplinary matters

                        pursuant to this provisions shall be subject to

                        the grievance procedure contained

                        in the Agreement.  In matters involving adverse    

                        contract changed, including non-renewal and

                        discharge, affected employees shall use appeal

                        procedures provided in applicable statute

                        rather than the grievance procedure of this Agreement.

 

The employer testified that this language was a problem for both

parties, because there was no reference to progressive discipline.

 

FINDINGS OF FACT AND RECOMMENDATION ON FORMAL

DISCIPLINARY ACTION A delineation of progressive discipline steps was

found in a district policy attached to the expired collective

bargaining agreement. An exhibit entered into evidence was

entitled "Appendix I Progressive Discipline Policy of the

Wellpinit School District No. 49".  Since the goal that the

parties wanted to achieve was to recognize Progressive

discipline in the collective bargaining agreement, the

contract language should be modified to accommodate the

philosophy of progressive discipline and the Appendix should

continue. Your fact-finder recommends: The parties should

ratify the following language:

 

            Section 2.15 - Formal Disciplinary Action

 

            1.         No employee shall be disciplined without just

            cause. All discipline shall be progressive in

            nature, as follows:

 

            A.        First offense - Verbal warning.

 

            B.        Second offense - Written warning.

 

            C.        Third offense - Disciplinary suspension, demo-

                        tion, or leave f absence, with pay.

 

            D.        Fourth offense - one to three day suspension

                        or leave of absence without pay.

 

            E.         Fifth offense - Dismissal.

 

            2.         The specific grounds forming the basis for

            formal disciplinary action will be made available

            to the employee, in writing.

 

            3.         Any formal disciplinary action taken against

            an employee shall be appropriate to the behavior or

            situation which precipitates the action.

 

            4.         Any employee shall be entitled, upon his/her

request, to have present a representative of the

teachers during any formal disciplinary action.

Any administrator shall be entitled to have a

representative of his/her own choosing during any

formal disciplinary action.

 

            5.         It is agreed that disciplinary matters pursu-

ant to this provision shall be subject to the grievance

procedure contained in the Agreement. In

matters involving adverse contract changes, includ-

ing non-renewal and discharge, affected employees

shall use appeal procedures provided in the appli-

            cable statute, rather than the grievance procedure

 

            Your fact-finder further recommends: The Appendix

            entitled "Progressive discipline Policy of the Wellpinit

            School District No. 1919 continues to be

            attached to the collective bargaining agreement.

 

ISSUE ELEVEN:  BEREAVEMENT LEAVE

(1987-88 language) Section 3 .3 :

 

            In the event of death in an employee's or

            spouse's immediate family, the employee shall

            be allowed up to five (5) days aggregate of

            absence on full pay. Immediate family is

            defined as anyone living within the household

            of the employee and/or father, mother, sister,

            brother, spouse, child, grandparent, uncle, aunt,

            nephew, niece, son-in-law, mother-in-law and grandchild.

 

            Request for bereavement leave must be approved by

            the superintendent prior to the actual leave. Such

            leave is non-accumulative.

 

The employer proposed adding "father-in-law" and "daughter-in-law"

to the definition of family. additionally, it wanted to reduce the

number of days of leave from five to three. The employer contends

that this is necessary because salary money for coverage of any

extra days comes from its Basic Education Act allotment, and thus

reduces the money the district has for its program offering.

 

Neither party stated the union's position on this subject.

 

FINDINGS OF FACT AND RECOMMENDATION ON BEREAVEMENT LEAVE

Neither party presented any examples of use, much less abuse,

of bereavement leave during the time period of the last

collective bargaining agreement to the present. The addition

of "father-in-law11 and "daughter-in-law11 is logical to

complete the definition of family, but the employer has not

advanced adequate reasons to reduce the number of days

potentially available. The current language gives the

employer certain control over the use of the leave: "up to

five days" shall be allowed; request for the leave "must be

approved by the superintendent prior to" the leave being

taken. Your fact-finder recommends: The parties should

ratify the following language:

 

            Section 3.3 - Bereavement Leave

In the event of a death in an employee's or

spouse's immediate family, the employee shall be

allowed up to five (5) days aggregate of absence

on full pay. Immediate family is defined as anyone

living within the household of the employee and/or

father, mother, sister, brother, spouse, child,

grandparent, uncle, aunt, nephew, niece, son-in-

law, daughter-in-law, father-in-law, mother-in-law

and grandchild.

 

Request for bereavement leave must be approved by

the superintendent prior to the actual leave. Such

leave is non-accumulative.

 

ISSUE TWELVE: PERSONAL LEAVE

(1987-88 language) Section 3.4:

 

Two (2 ) days per contract year may be granted

for personal leave. Notification shall be given to

the immediate supervisor at leave one

(1) full day prior to the leave. In the event that one

(1) full days notice is not possible under the

circumstances, as much notice as is possible

will be given to the immediate supervisor.

 

When personal leave is requested for business,

household, or family matters (as distinguished from "personal"

matters) , the immediate super- visor may require that the

employee give reason(s) for the leave. It is understood that

personal leave for business, household, or family matters

will be granted contingent on prior approval and when the

necessity for the leave makes it impossible for the employee

to attend to the matter during non-work hours..

 

Only one (1) employee will be allowed to

utilize personal leave on any given day.

Personal leave does not accrue year to year.

 

The employer proposed to delete the entire section. It advanced

that there was a letter between the parties stating that 1987-88

would be the last year that personal leave would be granted.

additionally, the employer claimed that the money for the coverage

of these days would be from the "01 accounts", and that it did not

want to use program funds in this manner.

 

Neither party stated the union's position on this subject.

 

FINDINGS OF FACT AND RECOMMENDATION ON PERSONAL LEAVE The

employer did not put any document into evidence to support its

claim about personal leave being abandoned by agreement of the

parties after 1987-88.5  The employer voiced a general

hesitancy to use program monies for any leave coverage, but it

did not offer specific evidence of programs that would have to

be curtailed or eliminated if personal leave continued.

Personal leave provisions are common in certificated collec-

tive bargaining agreements throughout the state. Your fact-

finder recommends that the parties should: Maintain the

Section 3.4 - Personal Leave language of the 1987-88 collec-

tive bargaining agreement.

_______________

            5          An attachment to the parties' 1987-88 contract entitled

                        "Negotiations for 1984-85" referenced a "District

                        Discretionary Day" that was available for the 1984-85     

                        school year only. It specified that "... this option

                        shall unconditionally expire on August 31, 1985".

 

ISSUE THIRTEEN: DURATION OF AGREEMENT

(1987-88 language) Section 7.1:

 

                        For teaching salary purposes, this Agreement

                        shall be effective September 1, [obliterated].

 

                        The remainder of the provisions shall be

                        effective upon ratification by both parties

                        and shall continue in effect until August 31,

                        1986/87, except as expressly modified below.

                        On that days, all terms and conditions of this

                        Agreement shall unconditionally expire.

 

                        [In an addendum, the contract was made effective

                        September 1, 1987 through August 31,

                        1988. ]

 

The employer proposed basically a two-year agreement, from

September 1, 1989 through August 31, 1991, but its language

contained a clause making the provisions effective upon ratifica-

tion. The employer's proposal also eliminated the "unconditionally

expire" sentence.

 

The union advances that the bargaining unit members' salaries have

been frozen since September 1, 1988, with the last negotiated raise

being effective September 1, 1987. The union argues that the

employees need salary relief retroactive to 1988. It also contends

that the retroactive salary increases should be paid with interest,

because the state has funded increases each year that the district

has not passed through to the bargaining unit members.

 

FINDINGS OF FACT AND RECOMMENDATION ON DURATION Neither

party argued this provision adequately. The impact of the

employer's proposal would have the parties begin bargaining

for the 1991-92 school year immediately after receiving this

fact-finding report. The union's proposal would cause

interest to be awarded on retroactive salary monies for three

years where the union might, itself, have been responsible for

some of the delay. The parties need a respite from the

bargaining table in order to let their labor/management

relationship level out. The Commission records show that the

parties mutually sought mediation from the Commission

resolve their dispute on January 18, 1990.6 The duration of

the collective bargaining agreement should cover the year in

which the parties sought mediation, the time the parties were

in mediation and fact-finding, and the year following the

issuance of the fact-finding report. Your fact-finder recommends:

The Parties should ratify the following language:

 

                        Section 7.1 - Duration

 

This agreement shall be effective retroactively to

September 1, 1989 and shall continue in effect

until August 31, 1992.

_____________

        6           Wellpinit School District, Case 8373-M-90-3254.

 

ISSUE FOURTEEN:             EXTRA-CURRICULAR STIPENDS

(1987-1988 language) Appendix - Extra-Curricular Stipends:

 

                        Head Football Coach                         $1705.00 ... 10%

            Assistant                                                         $1023.00.. ..6%

 

            Head Volleyball Coach                                  $1705.00...10%

            Assistant                                                         $1023.00. ... 6%

 

            Head Boys Basketball Coach                       $1705.00. . .10%

            Assistant                                                         $1023.00....6%

           

            Head Girls Basketball Coach                       $1705.00 ... 10%

            Assistant                                                         $1023.00 ..... 6%

           

            Head Baseball Coach                                    $1364.00.......8%

                                   

            Head Softball Coach                                      $1364.00...... 8%

 

            Journ/Annual Advisor                                    $1023.00 .... 6%

 

            Athletic Director                                            $2046.00...12%

                                               

            Wrestling                                                        $1705.00 ... 10%

                                   

            Track                                                              $1364.00 .... 8%

 

            Gymnastics                                                     $1364.00 .... 8%

 

            Cheerleader Advisor                                     $1023.00 .... 6%

 

            Cross Country                                                $1023.00 .... 6%

 

            Jr. High Head Boys

            Basketball Coach                                           $1023.00 .... 6%

Jr. High Head Girls Basketball Coach         $1023.00 .... 6%

Jr. High Head Football Coach                       $1023.00 .... 6%

Jr. High Head Volleyball Coach                   $1023.00 .... 6%

Christmas Program Director                            $341.00.....2%

 

The employer's proposal eliminates all references to a percentage

increase. It lists, instead, set dollar amounts. It is unclear

how the employer developed the dollar amounts it offered. The

pervious percentages were based on the state allocation salary

schedule. The employer's offer increased the amounts at different

rates: 10% stipends were increased by 2.5%; 0% stipends were in-

creased by approximately 15%; 6% stipends were increased by

approximately 25%, for example. The employer proposal eliminated

the gymnastics coach stipend and the assistant coach stipends for

volleyball and boys and girls basketball. It combined the track

and cross country positions into one stipend payment. It divided

the cheerleader advisor payments into three equal sums to cover the

separate seasons of football, basketball and wrestling. It changed

the "Journ/Annual Advisor" title to "Annual/School Paper". It

added a new category of "Senior Class Advisor" for a stipend. At

$4,000.00, the employer almost doubled the amount offered for the

athletic director. The employer also sought language that would

allow the district the right to add or revise the schedule "as

needed". Moyer also testified that there was concern about having

to pay a coach's stipend even though the sport was canceled because

not enough students were interested in the activity.

 

The union's proposal maintained percentage calculations, all

indexed to the salary schedule.7  The 10% and 8% stipends were

proposed at 12%; the 6% stipends were changed to 10% at the high

school and 8% at the junior high school. The proposal added

______________

 

            7           It is not stated whether the percentages were from

                        the base of the state allocation model or were to be

                        calculated from each coach's or advisor's actual salary.

 

"Senior Class Advisor" and "General Class Advisor" as two new

categories. The union echoed the employer's proposal of $4,000 for

the athletic director, and also sought an additional preparation

period for that position. 8

 

FINDINGS OF FACT AND RECOMMENDATION ON EXTRA-CURRICULAR

STIPENDS   The parties have long lived with the payment for

extra-curricular stipends as percentage calculations. The

employer advanced no adequate reason to justify changing that

practice. since the salary discussion that follows refers to

the state allocation model, the extra-curricular language

should be clarified to specify that the percentages are from

the base salary of that model. Also, since the base figure to

be used to calculate the stipends will be substantially

increased over the 1987-88 level, most of the actual percent-

ages themselves will not be recommended to be increased. The

athletic director stipend should be increased to $4,000 and

indexed to the base salary. There was no testimony as to why

an extra preparation period was needed for that position, so

that will not be recommended. The senior class advisor will

qualify for a new stipend. Again, because there was no record

            made on the general class advisor, that position will not be

added to qualify for extra payment. By that same token, the

employer offered no justification for the eliminations and

combinations in its proposed schedule, so those will not be

recommended. Your fact-finder recommends:  The Parties should

ratify the following language:

 

Appendix - Extra-Curricular Stipends                             

 

Athletic Director                                                                    $4,000  *

 

Head Football Coach                                                    10%                        

Assistant                                                                                       6%

 

Head Volleyball Coach                                                             10%

Assistant                                                                                      6%

 

Head Boys Basketball Coach                                                  10%                        

Assistant                                                                                       6%                                                                       

Head Girls Basketball Coach                                                   10%

Assistant                                                                                       6%           

                       

Head Baseball Coach                                                                  8%

 

Head Softball Coach                                                                    8%           

                       

Journ/Annual Advisor                                                                   6%

 

Wrestling                                                                                      10%

 

Track                                                                                              8%                                                                     

Gymnastics                                                                                     8%

 

Cheerleader Advisor                                                                     6%         

 

Cross Country                                                                                6%

 

Jr. High Head Boys Basketball Coach                                          6%

 

Jr. High Head Girls Basketball Coach                                          6%

 

Jr. High Head Football Coach                                                        6%

 

Jr. High Head Volleyball Coach                                                    6%

 

Christmas Program Director                                               2%

 

Senior Class Advisor                                                                     $ 500 *

 

* Dollar amounts listed are to be indexed to the salary schedule.

All percentages are to be calculated from the base salary

[Years = 0: BA column] of the state allocation model referred

to in the "wage" section.

 

The district has the right to cancel an activ-

ity, without having to pay the extra-curricu-

lar stipend, if not enough students turn out

for the sport/activity at the beginning of the season.

_____________

 

            8           At the January 30, 1991, meeting between the local members

                        of the bargaining unit and the employer, the employees made

                        the following proposal:

 

                                    Coaching and Coaches' Salaries:

The coaches will be paid from a pool that will be devel-

oped by the teachers. The district will take

3% from each teacher's salary and put the money

into the coaches' pool. All coaching positions must

be offered to certified staff members before being

offered to a non-certified or a non-staff person.

 

At the fact-finding hearing, the UniServ representative objected

to the introduction of this proposal, because he was unaware

of the offer. He maintained that the official union position

continued to be the historical listing of each coaching category

with a defined percent- age stipend.

 

ISSUE FIFTEEN: JOB DESCRIPTION

 

(1987-88 language)                [There was no language about job descriptions in the 1987-88 collective                                     bargaining agreement. ]

 

The employer offered a full job description at the hearing.

 

The union voiced no objection.

 

FINDINGS OF FACT AND RECOMMENDATION ON JOB DESCRIPTION

Since neither the employer nor the union evidenced any

controversy over this proposal, your fact-finder recommends:

The parties should ratify the following language:

 

                                                APPENDIX - JOB DESCRIPTION

 

                        TITLE:           CERTIFIED TEACHING STAFF

 

                        QUALIFICATIONS:

 

                        1.         A certificate for the particular position as

                                    required by the State Board of Education.

 

                        2.         Such additional requirements as set by the

                                    board.

 

                        REPORTS TO:          Principal and/or assigned

 

                        SUPERVISES:           May be required to supervise

                                                            Instructional Aids, Classroom Aids

                                                            and/or volunteers

 

                        JOB GOAL:               To enable the district to provide

                                                            quality education for all children

                                                            in the school system

 

                        GENERAL RESPONSIBILITIES:

 

                        1.         Professional skills: The teacher is expected

                                    to establish procedures of management to

                                    allow a maximum of learning and a minimum of disci-

                                    plinary action by:

 

                                    *          Planning and organizing effectively.

                                    *          Demonstrating competency in his/her area.

                                    *          Creating and maintaining an atmosphere

                                                conducive to learning.

                                    *          Providing opportunities for pupil partici-

                                                pation in educational activities.

                                    *          Making provisions for individual differ-

                                                ences.

*          Encouraging the development of independent

            work habits.

*          Encouraging a flexible, individual approach

            to problem solving.

*          Using appropriate language for students to

            model.

*          Using varied and appropriate instructional

            techniques to accomplish predetermined in-

            structional objectives.

 

                        2.         Professional relationships: The teacher is expected to

                                    establish and maintain a professional relationship with                                           students by:

 

                                    *          Encouraging respect for the rights, opin-

                                                ions, property, and contributions of others.

                                    *          Being sensitive to factors which affect

pupil achievement and behavior in educa-

tional, social and/or extracurricular pro-

grams.

                                    *          Being available for extra help.

                                    *          Using methods of management that result in

desired changes in behavior. Communicating and maintaining a working relationship with parents.

Maintaining confidentiality with respect to

students and their records.

                                    *          Refraining from personal criticism of staff

                                                to students.

                                    *          Avoiding use of position for commercial gain.

 

                                    The teacher is expected to establish and

                                    maintain a professional relationship with fellow staff                                              members by:

 

                                    *          Cooperating with other staff members.

                                    *          Consulting with coworkers in evaluating and

                                                meeting student needs.

            *          Leaving clear and complete instructions for

                        substitutes.

            *          Following the curriculum, policies, mission

                        and goals approved by the Board.

            *          Cooperating in evaluation of present cur-

                        riculum.

            *          Recommending possible revision of curricu-

                        lum.

 

3.         Professional Development: The teacher is

            expected to demonstrate professional devel-

            opment by:

 

            *          Participating actively in inservice programs.

            *          Keeping abreast of professional developments

in his/her particular area and in education

as a whole.

*          Exploring new teaching techniques as alternatives

            to better accomplish predetermined

            instructional objectives.

 

            The teacher is expected to follow the code of

            ethics as outlined by his or her respective

            professional group.

 

TERMS OF EMPLOYMENT:

 

Salary and work year to be established in accor-

dance with particular position and appropriate

Board-staff agreement.

 

EVALUATION:

 

In accordance with Board policy and appropriate

procedural regulations on Evaluation of Certified

Staff Personnel.

 

ISSUE SIXTEEN: TERO COMPLIANCE

(1987-88 language)                [There was no language about TERO compliance

                                                 in the 1987-88 collective bargaining agree-

                                                 ment. ]

 

On September 15, 1987, the Spokane Tribal Business Council, under

the authority of the Constitution of the Spokane Indians, ratified

a Tribal Employment Rights Ordinance (TERO). The stated purpose of

the Ordinance is to ".. assist in and require the fair employment

of Indians on or near the Spokane Indian Reservation and to prevent

discrimination against Indians in the employment practices of

Reservation employers. ” The TERO applies to the school district as

an employer engaged in work on the Reservation. Section 5.0 of the

TERO requires compliance by Unions, as follows:

 

                        Every union with a collective bargaining

                        agreement with an employer must file a written

                        agreement stating the union will comply with

                        this Ordinance and the Rules, Regulations and

                        Orders of the [Spokane Employment Rights]

                        Commission. Until such agreement is filed

                        with the commission, employers may not com-

                        mence work on the Reservation.

 

The Spokane Employment Rights Commission forwarded a model union

agreement to the parties during their negotiations. The employer

proposed that the model be adopted exactly as written. The

employer asserted that since one-third of its budget is funded by

federal ‘‘impact aid” money, it believed it must comply with the

ordinance.

 

The union desired modifications to the model which would allow it

to have an agency shop clause, and to have the employer hold the

union harmless in the face of any controversy over TERO compliance.

 

            FINDINGS OF FACT AND RECOMMENDATION ON TERO COMPLIANCE The

matter of TERO compliance was presented to the fact-finder as

an item that was at impasse between the parties, blocking the

settlement of their collective bargaining agreement, thus a

finding and recommendation will be made on the issue. 9

________________________________

      9           It is unclear whether the parties’ collective bargaining agreement must contain TERO       compliance language, if the model Memorandum of Understanding between the parties                   will suffice, or if TERO compliance can be achieved by other means. Certainly this                          fact-finding report cannot rule on whether TERO compliance is a mandatory subject of                   bargaining. WAC 391-55-345. Nor does this report pretend to rule on any potential                         conflict of laws question.

 

            Section 5.l(e) of the TERO details:

 

                        The union will grant temporary work permits to

                        Indians who do not wish to join the union.

 

            additionally, Section 5.4 of the TERO specifies:

 

In any hearing before the Commission where the

issue is compliance by an employer of any of the

requirements and provisions of the foregoing sub-

sections of Section 5, the burden of proof shall be

on the employer rather than on the employee or

other complainant to show said compliance.

 

Based on the language of the TERO, without any direction from

the parties otherwise, the union's modification regarding the

agency shop provision will not be recommended, but a modifica-

tion to add a hold-harmless clause is appropriate. Your fact-

finder recommends: The Parties should ratify the following

language:

 

                        MEMORANDUM OF UNDERSTANDING

                                                BETWEEN

                          WELLPINIT SCHOOL DISTRICT #49

                                                    AND

                        WELLPINIT EDUCATION ASSOCIATION

 

            This memorandum of understanding relates only to

            work performed with the Wellpinit School District

            and further relates only to those individual em-

            ployees hired and/or applicants referred for em-

            ployment through the Spokane Tribal Employment

            Rights Office.

 

            HIRING: The parties agree to include and/or modify

            the Master Labor Agreements to assure the Spokane

            Tribal Employment Rights Office has exclusive re-

            ferral rights for Indian preference applicants for

            employment opportunities available within the

            Wellpinit School District #49. The parties should

            meet and establish hiring procedures consistent

            with the Spokane Tribal Employment Rights Ordi-

            nance.

 

            Union Membership: The parties recognize all em-

            ployees have the right to self-organization, to

collective bargaining through representatives of

their own choosing, and the right to refrain from

any and all such activities.

 

If the employee chooses the option of joining the

Union, all rights and responsibilities associated

with membership shall apply, but no Indian prefer-

ence employee shall be required and/or coerced

in joining or not joining the Union.

 

Training: The parties recognize the necessity for

specialized training and agree to meet and estab-

lish applicable training rates where necessary.

 

Supervisors and professional personnel: The par-

ties recognize the necessity of the employer to

recruit and/or hire supervisory and/or professional

personnel for business necessities within the

Wellpinit School District and agree to establish

appropriate qualifications in filling those posi-

tions.

 

The Spokane Tribal Employment Rights Office shall

be given first call priority rights before adver-

tising any employment opening within the Wellpinit

School District #49 and only qualified Indian

Preference applicants will be given due consider-

ation.

 

The District will hold the Association harmless

from all liability based on the District's compli-

ance with the Spokane Tribal Employment Rights

Ordinance.

 

Complaint procedures: All violations or complaints

within this agreement shall be addressed through

procedures within the Spokane Tribal Employments

Rights Ordinance.

 

ISSUE SEVENTEEN: SALARY SCHEDULE

 

(1987-88 language) Appendix - Salary Schedule:

 

YEARS OF

SERVICE       BA       BA-15      BA+30        BA+45            BA+90     MA             MA-45            MA+90

                                                                                                                                                            or PHD

0

1

2

3

4

5

6

7          [The actual salary amounts were printed

8          in the Appendix.  Those figures have

9          been left out here, as they  are not

10        necessary for understanding the wage proposal.]

11

12

13

14 or more

 

The employer proposed continuing the statewide salary allocation

schedule, as amended by the Legislature, for a teacher's first

seven years of work. After the seventh year of teaching, the

bargaining unit member's salary would be tied directly to his/her

performance evaluation. The employer characterized this as a self-

policing wage offer: If the employee wanted to do the bare minimum

of work, he/she could: but if the employee wanted to do more work,

then that employee would be rewarded for the effort with more

money.10  Moyer did testify that previously, for as long as he had

served on the school board, the district had always passed all the

state allocated money through to the certificated staff.

_______________

            10        Specifically, the employer proposed:

 

                                                MERIT PAY SYSTEM FOR CERTIFIED EMPLOYEES

 

The Board's philosophy regarding MERIT PAY for

certified employees is that those persons

doing the best job should receive the best

pay.

 

1. Certified employees will be asked to play a

key role in developing the process and

criteria for evaluation.

 

2. Administrators and/or supervisors will

make the evaluation of the certified staff

their first priority.

 

3. During the spring the Board will determine

the approximate amount of money to be spent

and negotiate merit pay increases.

 

4. At the end of the evaluation cycle, the

administrators and/or supervisors will deter-

mine which of the certified staff have done

outstanding, competent, or unsatisfactory

work over the past year and will classify them

accordingly.

 

The Board desires that the certified staff with

similar accomplishments receive similar raises, therefore:

 

1. All certified personnel with performance

classified as outstanding or competent will

receive their standard increment as determined

by the amount of money available divided equally.

 

2. Personnel with performance classified as

unsatisfactory will receive no increment of increase.

They will be placed in an intensive im

program and without im may be dismissed.

With this philosophy in mind:

____

 

The union voiced a strong objection to the employer's proposal.

The union believes that the district had a failing administrator

who could not deal with teachers who might demonstrate poor

performance, and that the district was therefore prompted to use

money as a motivator. The union proposed that the statewide salary

allocation schedule be continued. The union did acknowledge that

the appropriations act stated that "not more than" the state

allocation could be spent on certificated salaries for the work

year and that all of the money did not have to be put on the salary

schedule. The union also agreed that the Legislature set the exact

salary level for only the first year BA degree teacher and the

first year MA degree teacher; apart from those two cells, the

district did not have to follow the state allocation model.

 

                        FINDINGS OF FACT AND RECOMMENDATION ON SALARY SCHEDULE 

                        The record establishes that the District has placed employees on

probation over the past few years. Grievances were filed and

the employer never proceeded with the discipline, because it

was advised that it had "bad forms". The evaluation procedure

is the proper method to use to correct performance, and the

fact-finder is recommending the changes the employer sought in

the evaluation section of the collective bargaining agreement.

It is not proper to withhold money that the state allots to

the district for each certificated employee based on his/her

level of training and length of experience. The parties have

lived with the statewide salary allocation schedule since

1977. The employer advanced no persuasive reasons to abandon

that schedule. Since the bargaining unit members have not

received a recent pay increase, but the state continues to

allocate increased amounts of money to the district based on

each employee's length of service and level of education every

year, the salary recommendation is to be retroactive to the

effective date of the collective bargaining agreement. Your

fact-finder recommends: The Parties should ratify the

following language:

 

 

STATEWIDE SALARY ALLOCATION SCHEDULE

FOR CERTIFIED INSTRUCTIONAL STAFF

 

YEARS

OF

SERVICE       BA       BA-15             BA+30            BA+45            BA+90           MA    MA+45                                                                                                                                               MA+90  or  Ph.D

 

0

1          [The appropriate salary amounts, as verified by the

2          Office of the superintendent of Public Instruction

3          for the State of Washington, should be reflected on

4          the schedule for the years that this collective

5          bargaining agreement is in effect,e.g., 1989 -

6          1990, 1990 - 1991, 1991 - 1992.1

7

8

9

10

11

12

13

14

15 or more

 

The salary payments are retroactive to September 1,1989. Any

retroactive increases due to a bargaining unit member based on

additional experience and/or increased educational level are to

be paid to the bargaining unit member in the pay period following

prompt ratification of the collective bargaining

agreement by both parties.

 

RESPONSIBILITIES OF PARTIES

 

The above report and recommendations addresses all the items that

were presented at the fact-finding hearing. The parties are

reminded of the requirements of the statute and administrative code

at this point. Specifically:

 

RCW 41.59.120 RESOLVING IMPASSES IN

 COLLECTIVE BARGAINING--MEDIATION--

FACTFINDING WITH RECOMMENDATIONS--

OTHER.

                        ...

                                    (3): Such [fact-finder's] recommenda- tions, together

                        with the findings of fact, shall be submitted in writing to the

                        parties and the commission privately before they are made

                        public. Either the commission, the fact- finder, the employer,

                        or the exclusive bar- gaining representative may make such

                        findings and recommendations public if the dispute is not

                        settled within five days after their receipt from the fact-finder.

 

                        ***

                                    WAC 391-55-350 EDUCATIONAL EMPLOYEES --

                        RESPONSIBILITY OF PARTIES AFTER FACT-FINDING.

                        Not more than seven days after the findings and recommendations

                        have been issued, the parties shall notify the commission and each

                        other whether they accept the recommendations of the fact-finder. If the                                                 recommendations of the fact-finder are rejected by one or both parties

                        and their further efforts do not result in an agreement, either party

                        may request mediation pursuant to chapter 41.58

                        RCW and, upon the concurrence of the other party, the executive

                        director shall assign a mediator.

 

DATED at Olympia, Washington, this  21st  day of August, 1991.

 

                                                                        KATRINA I. BOEDECKER, Fact-finder

 You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.