U.S. Department of the Interior, Bureau of Indian Affairs, Office of Indian Education Programs, Rapids City, South Dakota and National Federation of Federal Employees, Local 150

[ v55 p329 ]

55 FLRA No. 52







March 30, 1999


Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members

Decision by Chair Segal for the Authority.

I. Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Charlotte Neigh filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union did not file an opposition to the Agency's exceptions.

      The Arbitrator determined that the Agency had not met its burden of demonstrating, by substantial evidence, that it had cause for not renewing the grievant's teaching contract. For the reasons that follow, we deny the Agency's exceptions.

II. Background and Arbitrator's Award

      The Agency determined not to renew the grievant's teaching contract and informed the grievant by letter stating, in pertinent part, "a variety of reasons," as follows:

your file indicates you have been involved in many student incidents. . . . In no incidents were there any formal charges filed. However, it is our feeling that with so many incidents occurring, it can't help but to effect (sic) your teaching . . . . it is in the interest of the community, parents, students and yourself that the academic situation would be better served by not renewing your contract . . . .

Award at 11.

      After an informal hearing, the Agency then sent the grievant another letter, reaffirming the decision not to renew the contract, as follows:

I was referring to the number of times that you were removed from the classroom while the series of incidents were investigated. (Your representative) indicated that your time being out of the classroom was not your fault but rather Administrative's (sic) fault. In that area, I disagree. You were . . . the common denominator for each of those incidents. Your (sic) responsibility of the administration, whoever they may be, to research the material until they are satisfied that you could return to your teaching duties without any further incident with students, aids or yourself. You are the primary instructor in that classroom, and . . . are responsible for all events in the classroom.

Id. The decision again was reaffirmed, and the Union grieved the nonrenewal.

      As relevant here, [n1]  the Arbitrator determined that, pursuant to Article 40, Section 4B of the parties' agreement, [n2]  the only legitimate basis for not renewing the grievant's contract would be "cause." Applying the "substantial evidence" standard that the parties had stipulated was the standard for reviewing a nonrenewal decision, the Arbitrator concluded that the Agency had not met its burden of demonstrating that it had cause for the nonrenewal of the grievant's contract. The Arbitrator determined that the Agency's first notification letter did not reference any instances where the grievant was found to have committed inappropriate conduct. According to the Arbitrator, the Agency had based its [ v55 p330 ] decision on "an anticipated decrease in the quality of [g]rievant's teaching, although the quality of his performance is admittedly not at issue." Id. at 18.

      The Arbitrator then examined the Agency's second letter to the grievant and determined that the Agency shifted its reasoning and blamed the grievant for being away from the classroom while student complaints were investigated. The Arbitrator concluded that "[i]n effect, [m]anagement is blaming the [g]rievant for being the object of student complaints that were never determined to be valid." Id. The Arbitrator noted that the Agency never considered that students might have made false allegations against the grievant based on their dislike for him, and found no apparent reason why the investigations were so lengthy that they resulted in the grievant's absence from the classroom for extensive periods of time.

      The Arbitrator concluded that "[g]ood management practices require competent and fair investigations and reliable conclusions in instances as serious as allegations of teacher misconduct" and that "[i]n this case there are no such reliable conclusions." Id. The Arbitrator concluded, therefore, that the Agency had not met its burden of demonstrating, by substantial evidence, that it had cause for the nonrenewal of the grievant's contract. The Arbitrator sustained the grievance and directed the Agency to renew the grievant's teaching contract and make the grievant whole in conformance with the Back Pay Act, 5 U.S.C. § 5596(b).

III. Agency's Exceptions

      The Agency argues that it did not violate Article 40, Section 4B of the parties' agreement because its nonrenewal of the grievant's contract was for cause and was based on substantial evidence, as required by 25 C.F.R. § 38.8(i). [n3]  According to the Agency, management met the substantial evidence standard when it informed the grievant that his teaching would be affected by the number of incidents involving students, and that the community, students and the grievant would be better served by not renewing the grievant's contract. In addition, the Agency asserts that the grievant admitted to one instance of "untoward conduct involving a student." Exceptions at 3. The Agency further argues that it did not commit harmful procedural error. In addition, the Agency maintains that it was required