PAT v. MULT. SCH. DIST. 1

Decision Date27 December 2000
Citation171 Or. App. 616,16 P.3d 1189
PartiesPORTLAND ASSOCIATION OF TEACHERS and Denise Poole, Petitioners, v. MULTNOMAH SCHOOL DISTRICT NO. 1, Respondent.
CourtOregon Court of Appeals

Paul B. Gamson, Portland, argued the cause for petitioners. With him on the brief was Smith, Gamson, Diamond & Olney.

William H. Walters, Portland, argued the cause for respondent. With him on the brief was Miller, Nash, Wiener, Hager & Carlsen, LLP. Before LANDAU, Presiding Judge, and LINDER and BREWER, Judges.

LINDER, J.

Petitioners Portland Association of Teachers (PAT) and Denise Poole seek review of an order of the Employment Relations Board (ERB) dismissing petitioners' complaint against Multnomah County School District No. 1 (the district), in which petitioners alleged that the district engaged in an unfair labor practice under ORS 243.672. ERB determined that petitioners failed to establish an unfair labor practice because, among other reasons, they did not prove that the district's action in determining what classes Poole would be assigned to teach was motivated by Poole's exercise of a protected activity. For the reasons we explain below, we reverse and remand.

We draw our summary of the facts from ERB's findings, which petitioners do not challenge. Poole has been a teacher at Sellwood Middle School for 11 years. She is certified to teach elementary and basic math. In her time at Sellwood, Poole primarily has taught math, but she periodically has taught elective courses such as physical science, marine science, and consumer issues. Beginning with her second year at Sellwood, Poole regularly taught at least one advanced math class each semester. She considers the advanced math classes to be desirable assignments. In the 1994-95 school year, Poole received a positive performance evaluation indicating that she met or exceeded the district's teaching standards.

Poole has been an active member of PAT for many years. At the time of the hearing before ERB, she had been a director on the PAT Executive Board for three years and a member of the grievance committee for six years. She was a PAT delegate to various state and national conventions and training programs. During the 1995-96 contract negotiation year, Poole was a "cluster organizer," which meant that she was responsible for organizing the activities of 50 to 100 "building organizers." In that capacity, she attended meetings, developed work plans, communicated with bargaining organizers regarding the progress of negotiations, and made telephone calls and visited buildings to recruit members to participate in organizing activities. Under the collective bargaining agreement between the district and PAT, Poole was entitled to take leave for PAT activities, and PAT was required to reimburse the district for the costs of substitutes due to those absences. In the spring of 1995, PAT and the district began negotiating for a new collective bargaining agreement. Negotiations were difficult and time-consuming, but they resulted in an agreement that was ratified on March 26, 1995.

Under the collective bargaining agreements over the years, Poole has been entitled to different types of leave in addition to PAT leave. Under the agreement in place at the time of ERB's hearing, she was annually entitled to 10 days of sick leave, 3 days of family illness leave, 1 to 3 days of funeral leave, 3 days of personal business leave, 2 to 4 days of professional leave, and 3 days of unpaid personal leave. In the four years between the 1990-91 school year and the 1993-94 school year, Poole missed a total of 122 days of school. She took 23 days of PAT leave, 8 days of personal business/emergency leave, 5 days of family illness leave, 66 days of sick leave, 7 days of professional leave, 6 days of funeral leave, 1 day for a field trip, 5 unspecified leave days and 1 unpaid leave day. During the 1994-95 school year, Poole missed a total of 31 days of school: 14 days of PAT leave, 13 days of sick leave, 2 days of family illness leave, 1 day for an emergency, and 1 day of professional leave. During the 1995-96 school year, Poole missed 50 days of school: 30 days of PAT leave, 10 days of sick leave, 4 days of professional leave, 3 days of personal business/emergency leave, and 3 days of unpaid leave. During the 1996-1997 school year, up to the time of the hearing in May 1997, Poole had missed 33 days of school: 14 days of PAT leave, 10 days of sick leave, 3 days of personal business/emergency leave, 3 days of family illness leave, and 3 days of professional leave.

Poole has never been disciplined for excessive absences or misuse of leave. At the end of the 1994-95 school year, however, Sellwood Principal John Alkire spoke to Poole about her absences and told her that her absences were negatively affecting other teachers. He suggested that Poole provide better lesson-planning for substitutes to minimize the disruption caused by her absences. Before the start of the 1995-96 school year, Alkire received letters from several parents voicing concerns about Poole's teaching abilities and her absences and requesting that their children not be placed in Poole's math classes. Alkire met with Poole and told her of the parents' concerns. During the 1995-96 school year, which was the contract negotiation year in which Poole was absent 30 days for PAT activities, Alkire again received letters from several parents expressing concerns about Poole's absences. Once, in November or December 1995, when Poole submitted a leave request for PAT activities, Alkire noticed the request and asked Poole if there were other people who could perform some of her PAT duties. He also questioned Poole as to why PAT activities were always scheduled for the afternoons and expressed concern that Poole's afternoon classes were being adversely affected.

From December 1995 through March 1996, Alkire received more complaints from parents about Poole's teaching ability, absences, lack of continuity, eating in class, and poor parent-teacher communications. In February 1996, Alkire sent Poole a memorandum regarding one particular parental complaint and expressed concern that Poole's absences were having a negative effect on the jobs of other teachers who were assigned to her students when she was absent. On February 9, 1996, one parent sent a letter to Poole directly, raising concerns about his child's performance and the effect of Poole's frequent absences. That same parent then sent a February 12 letter to Alkire expressing similar concerns. Poole responded to issues raised in those letters, but the parent was not satisfied with the response. The same parent then wrote to the district and the PAT president, asking for the dates of and the reasons for Poole's absences and challenging the legitimacy of Poole's use of leave time. On February 21, 1996, Alkire and Sellwood Vice Principal Debbie Bradway met with four parents who had complained about Poole. One parent filed a "formal" complaint against Poole regarding her performance in the classroom. At Poole's request, Alkire discussed the matter with a representative of PAT, who told Alkire that Poole's use of PAT leave time was unusually high in the 1995-96 school year because of contract negotiations. On March 1, 1996, Bradway saw Poole entering the building after classes had begun and made a remark that upset Poole and caused her to write a memorandum asserting the right to use contractual leave time.1

On April 16, 1996, Alkire wrote a letter to Poole suggesting that she transfer to a different school:

"I am concerned with the complaints of parents, students, and peers regarding your absences. I know that as a member of the PAT executive board you have a legal right to attend meetings and work with the association. I respect that, but at the same time I have concerns with the level of your commitment to the education of children at Sellwood."

Later in the letter, Alkire wrote:

"I believe that it would be in your best interest and the best interest of Sellwood School if you were to transfer to another school. You have the skills to be a good teacher, but you do not have support from the Sellwood community to continue here."

Poole told Alkire that she did not want to transfer.

That same month (April 1996), the district announced that, because of budget cuts, it would lay off teachers for the coming school year. The staff reductions at Sellwood caused the school to reduce the number of its math classes by a third. Jim McNeely, a teacher at Sellwood who held a basic advanced math endorsement, was among those to be laid off. Alkire approached Poole and asked her if she would be willing to develop a computer elective. Poole replied that she had no background in computers and was not interested in teaching computers. In June 1996, Alkire notified Poole that her assignment for the 1996-97 school year would include three math classes and three computer classes. Alkire indicated that money would be available over the summer for planning and curriculum development for the computer classes. Alkire told Poole that she would not be assigned any advanced math classes because of parental concerns and the fact that she had missed so much time. He also told her that the new assignment might not be permanent and that they would review it after one year. Unlike her past year's assignment, Poole's new assignment required that she travel between two classrooms located on different floors of the building. As a result of the layoffs, several other teachers received assignments for the 1996-97 school year that they considered less desirable because of the class subject, the fact that they had to change rooms for their classes, and the fact that they were required to travel between classes. In some of those other cases, the distance between classes was much farther than in Poole's case. Those teachers were reassigned despite...

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