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| Education
Association of Pittsfield, NEA-New Hampshire Complainant v. Pittsfield School District Respondent |
Case
No. T-0250-17 Decision No. 2000-003 |
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APPEARANCES Representing Education Association of
Pittsfield, NEA-NH: Representing Pittsfield School District: The Education Association of Pittsfield, NEA-New
Hampshire (Association) filed unfair labor practice (ULP)
charges on July 30, 1999 against the Pittsfield School
District (District) alleging violations of RSA 273-A:5 I (a),
(b), (c), (d), (g) and (h) resulting from coercing employees
in the exercise of their rights under Chapter RSA 273-A,
displaying anti-union animus and adversely evaluating and
disciplining the president of its local association, Wayne
Petrovek. The Pittsfield School District (District) filed its
answer on August 12, 1999 and a supplemental answer on
September 10, 1999. After
FINDINGS OF FACT 2. The Education Association of Pittsfield NEA-New Hampshire is the duly certified bargaining agent for teachers and certain other personnel employed by the District. 3. The Association and the Pittsfield School Board are parties to a collective bargaining agreement (CBA) for the period September 1, 1997 through August 31, 2000. Article VIII of that agreement is entitled "Employee Evaluation." It is detailed and, in Sections 8.1 through 8.9 thereof, provides as follows: 8.1 Observation of work performance of an employee certified to be represented by the Association will be conducted openly. Formal observation sessions shall be with the full knowledge of the employee. All other observations of the employee's work performance which are to be made part of his file will be made known to the employee. 8.2 An employee shall be given a copy of any evaluation report prepared by his evaluators before or during any conference held with him to discuss it. If the employee is dissatisfied with this evaluation conference, he may request additional conference time. 8.3 The importance and value of a procedure for assisting and evaluating the progress and success for both newly employed and experienced personnel for the purpose of improving instruction is recognized. 8.4 No written evaluation report shall be placed in the employee's file or otherwise acted upon without affording the employee an opportunity for a prior conference thereon. The employee shall sign such report in acknowledgment that the employee has read it, but in no way to indicate agreement with the contents thereof. 8.5 Those comments or reports regarding, an employee made to any member of the administration by a parent, student or other person which are used in evaluating an employee shall have been promptly investigated as to their accuracy. An employee shall be given, to the extent practicable, an opportunity to respond to and meet with a person making derogatory or degrading comment or report for purpose of rebuttal. Where such opportunity cannot practically be afforded, the record thereof shall be so noted and the comment or report given such minimal weight, if any, as the circumstances accord. 8.6 The employee shall acknowledge that he has had the opportunity to review such comment or report by affixing his signature to the copy to be filed, with the expressed understanding that such signature in no way indicates agreement with the contents thereof. The employee shall also have the right to submit a written answer to such comment or report or to any material filed in his personal file and his answer shall be reviewed and commented upon in writing by the Superintendent or his designee and both answer and comment thereon attached to the file copy. 8.7 All documents shall be filed, signature notwithstanding, and such action shall be so indicated by the employee's supervisor. The Association shall be informed if any such employee has refused to sign derogatory or evaluation material that is being placed in his file. 8.8 Each employee shall be entitled to knowledge of and access to supervisory records and reports of his competence, personal character and efficiency as are maintained in his personal file in evaluation of his performance as an employee of the District. 8.9 In the event the Board removes from the teacher's file any materials, a dated notation shall be placed in the file stating what materials have been removed. This is the same language which appeared in the parties' 1995-1997 CBA, which was the subject of our findings in Decision No. 97-071 to which reference is hereby made. Decision No. 97-071 was appealed to and accepted for hearing by the New Hampshire Supreme Court under Docket 97-738. To our knowledge, there has been no application for or action taken to grant interim relief from any of the remedies ordered therein pending adjudication by the court. 4. After the closing of the record in the proceedings on November 30, 1999, but before the issuance of this decision, the Supreme Court issued its decision in Docket No. 97-738 on December 28, 1999, the contents of which are incorporated herein by reference. 5. During the 1998-99 school year, Petrovek
was the subject of observation reports on November 5, 1998
(Association No. 5; District Exhibit page 13), January 26,
1999 without a pre-conference or post-conference date
indicated (Association Exhibit No. 6; District Exhibit page
19) and a summative evaluation report dated March 15, 1999 by
the principal (Association Exhibit No. 13; District Exhibit
page 38). 38). All of the foregoing evaluation reports, summative
or otherwise, were conducted under an evaluation
procedure unilaterally implemented mid-term to the immediately
prior CBA in 1995-97 and for which a cease and desist order
issued from this Board in Decision No. 1997-07]. on August 1,
1997. The summative report, containing neither a report date
nor a conference date, was critical of Petrovek. It was
followed by a plan of assistance (Association Exhibit No. 20)
dated June 2, 1999 which cited four deficiencies and contained
a six-step plan of improvement, not withstanding the positive
aspects of Association Exhibit No. 5. The first of the four
stated deficiencies concerned Petrovek's inability to
communicate and his missing a certain parent conference when
he was sick (as referenced, and/or criticized in Association
Exhibit Nos. 2, 6) and another when he was involved in
coaching duties on October 7, 1998 (referenced in Association
Exhibit Nos. 3, 4 and a "matter of remediation" in
Association Exhibit Nos. 13 and 20). By function or
annotation, it appears that all of the foregoing critical
documents were sent to Petrovek's employee file.
Communications difficulties between Petrovek and Principal
DeSousa are evident from DeSousa's rescheduling a follow-up
report meeting simultaneously with a meeting when Petrovek was
to meet with the Superintendent on Association business
(Association Exhibit Nos. 8 and 9). We are mindful of the cases cited in the
exhibits and memoranda of the parties, inclusive of Gilmanton
Education Association, Decision No. 91-102 (December 16,
1991); Carolyn Bailey/Milton Education Association, Decision
No. 94-106 (December 14, 1994); Fall Mountain From all evidence before us, it appears that the parties are operating under the same contract language pertaining to evaluations as was, unilaterally implemented under the 1995-97 CBA. (Finding No. 3.) Our decision in the 1997 Education Association of Pittsfield case (Decision No. 97-71, August 1, 1997) noted, at Finding No. 5 thereof, that the contents, requirements and forms associated with the unilaterally implemented 1996 evaluation plan were "not similar to either the contract provisions (see Finding No. 3, above) or (to] the 1981 evaluation plan," a finding echoed by the Supreme Court on page 2 of its Decision 28, 1999 slip opinion. Thus, the circumstances remain unchanged, with the exception that the managerial conduct which is the subject of the instant ULP occurred in SY 1998-99 rather than in SY1996-97. We conclude that these actions complained of in SY 1998-99 are as objectionable, as tainted and as much of a ULP as was the conduct found to have been improper in 1996-97, for the same reasons then cited by this board and, subsequently, by the court. We also note that the Supreme Court performed a "negotiability test" under Appeal of State, 138 N.H. 716 (1994), disallowed the District's argument that the negotiability of such evaluations, under the facts of this case, was a prohibited subject of bargaining, and rejected the notion that the managerial exclusion language of RSA 273-A:1 XI applied to the circumstances of the teacher evaluation process as used in Pittsfield. Based on the foregoing, we find the
District's conduct, by and through its agents and employees,
to have been violative of RSA 273-A:5 I (h) as a breach of
contract, RSA 273-A:5 I (g) for unilaterally implementing and
interpreting a plan of evaluation without negotiations thereon
as required by RSA 273-A:3 and RSA 273-A:5 I (a) for
restraining, coercing and interfering with employees, notably
Petrovek, in the exercise of his rights under Chapter 273-A
generally, as evidenced by memoranda between the principal and
Petrovek as referenced in our findings above. We direct the
District to cause its agents and employees to CEASE and DESIST
from these actions forthwith and to cause all material
referenced in our findings, most particularly Finding No. 5,
which is derogatory to Petrovek to be expunged, by both form
and reference, from his personnel file. Should there be any
differences of opinion between the parties as to any material
which is or is not derogatory to Petrovek, the matter shall be
grieved, starting at the Superintendent's level up to and
including arbitration, under the provisions of Article VI of
the parties' current CBA which defines "grievances"
as "violations, misinterpretations or
misapplications" of the contract. Any grievance so filed
within thirty (30) days of the date of this decision shall be
deemed to have been timely filed within the meaning of Article
6.1 of the CBA. So ordered. Signed this 12th day of January, 2000.
By unanimous vote. Alternate Chairman Bruce K. Johnson presiding. Members Richard Roulx and Richard Molan present and voting. |
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