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Schools And Colleges Sample Articles:
SCHOOL DISTRICTS AND UNIONS POST QUESTIONABLE FAILED PROBATION DOES NOT REQUIRE JUST CAUSE SUBSTITUTE TEACHERS HAVE NO CONTINUING CONTRACT RIGHTS TEACHER FAILING BACKGROUND CHECK NOT ENTITLED TO PROBABLE CAUSE HEARING BOARD FORMULATES TRANSFER LANGUAGE FOR COLLEGE EMPLOYEES COUGAR
PROF STRIKES OUT ON TENURE AND LAWSUIT
The Evergreen Freedom Foundation and the Teachers For A
Responsible Union sued the Washington Education Association (WEA), its
affiliates and numerous school districts, claiming the WEA and the districts
were in violation of RCW 42.17.680(3) because the districts made payroll
deductions for political contributions by the WEA without obtaining
employees' annual written authorizations. In a case applicable to all public
sector employers and unions, the Washington State Supreme Court held that the
WEA, as a labor organization, is not an entity bound by the statute because
it is not an "entity responsible for the disbursement of funds in
payment of wages or salaries." It also held that school districts were
not in violation of the statute because under a valid Public Disclosure
Commission (PDC) rule, annual written authorization is required only when
payment from payroll deductions is made to a political committee or to a
candidate. In this case, the payments go to the WEA, and the school districts
have no direct knowledge of the WEA's disbursements.
RCW 42.17.680(3) is part of the Fair Campaign Practices Act, passed in 1992 as a result of the passage of Initiative 134. One of the WEA's political action entities is funded by a special member assessment without an annual written authorization for the payroll deduction. Pursuant to RCW 41.59.100, non-WEA members in WEA bargaining units are assessed a separate agency shop fee, which does not include a political action assessment. Unions Excluded from Payroll Deduction Provisions The high court, with Justice Smith writing for the majority, rejected the plaintiffs' argument that the WEA is an entity covered by RCW 42.17.690(3), which states: No employer or other person or entity responsible for the disbursement of funds in payment of wages or salaries may withhold or divert a portion of an employee's wages or salaries for contributions to political committees or for use as political contributions except upon the written request of the employee. ... The request is valid for no more than twelve months from the date it is made by the employee. Although the WEA is a "person or entity," it is not "responsible for the disbursement of funds in payment of wages or salaries" to its members. Under the plain meaning of the statute, a labor organization is not responsible for the payment of wages or salaries to its members and therefore is not covered under the disputed provision. Transmittal of Withheld Dues Not a "Political Contribution" The court also rejected the plaintiffs' argument that the school districts violate the statute because they deduct membership dues from salaries without prior annual written authorization and transmit those dues to the WEA, which in turn utilizes them for political contributions. It agreed with the school districts' argument that transmitting the withheld funds to the WEA is not a "political contribution" under the statute. The school districts argued that the plaintiffs' interpretation would require an employer to follow the money deducted from the employee-members' paychecks, determine its intended use and then require authorization, regardless whether the recipient of the deduction uses the funds as intended. The districts asserted they have no control over expenditure by the WEA of withheld funds they forward to it or its affiliates. PDC Rule Upheld WAC 390-17-100, a rule promulgated by the PDC, requires an annual authorization only for funds withheld or diverted from an employee's wages for contributions to a political committee or for political contributions to candidates for State or local offices specifically designated by the contributing employee. Noting that administrative rules adopted pursuant to a legislative grant of authority are "presumed to be valid," the court found that the plaintiffs did not satisfy their burden of proof that the PDC's rule was invalid. It found that the PDC's rule satisfactorily resolved any ambiguity in the statute and noted that the "Legislature has apparently acquiesced in the PDC's interpretation of RCW 42.17.680(3) since 1996." The court disagreed with the plaintiffs that Initiative 134 was designed to protect the "constitutional rights" of labor organization members because neither the text of the initiative nor the Voter's Pamphlet referred to the constitution. The court also noted that the: full context of Initiative 134 suggests the reference to limiting the influence of labor organizations and all "large organizational contributors" is associated with the provisions limiting contributions to candidates. This language does not justify creation of unstated prohibitions on a wide variety of campaign activity by labor organizations. Moreover, the drafters of Initiative 134 prohibited use of agency shop fees for political contributions, leading "to the logical conclusion that the Initiative did not alter the ability of labor organizations to use members' dues for contributions under Chapter 42.17 RCW," the court wrote: There is no statutory prohibition against a labor organization using general treasury funds obtained from members' dues for the purpose of operating a political committee, influencing an election or to otherwise make contributions to a political committee or candidate. Notice Requirement Undermines Victory? Significantly and perhaps unfortunately, as Justice Madsen's dissenting opinion pointed out, the Court's majority wrote (emphasis added): When an employer has notice that the funds deducted are for the use of a political committee or candidate, the employer may not then make that deduction without specific annual authorization. However, when the employer makes deductions under the Education Employment Relations Act, RCW 41.59.100, and the Public Employees Collective Bargaining Act, RCW 41.56.110, and the employer is not made aware of the specific intended use of the funds, the employer has no legal obligation or authority to seek annual written authorization. Conversely, when "the employer is not made aware of the specific intended use of the funds, the employer has no legal obligation or authority to seek annual written authorization." Notice Standard May Put Employers in a Bind Justice Madsen, in a strongly worded separate opinion, disagreed that the statute or the PDC rule contains a "notice standard" advanced by the majority. This notice standard, in her opinion, is unnecessary and "places the employer in an untenable position." She inquired rhetorically: Does "notice" mean actual notice, and if so, from whom? Does it mean constructive notice, i.e., a reasonable employer should have known? Relevant to the circumstances in this case, does the employer ever have an affirmative duty to inquire of a labor organization what the funds it receives are to be used for, i.e., if there is some question about what funds are to be used for, with use as a political contribution a possibility, must the employer inquire further? The justice observed that the majorities notice standard "raises disturbing questions about how an employer is to comply with RCW 42.17.680(3) and other statutory mandates." An employer that violates the statute may be fined up to $10,000 for each violation. At the same time, RCW 41.59.100 authorizes a dues checkoff clause in a collective bargaining agreement and contains no annual authorization requirement. Therefore, requiring such authorization could violate the collective bargaining agreement. Moreover, under RCW 41.59.140(1)(b), it is an unfair labor practice for an employer to interfere with any employee organization. Thus, if a school district has some reason to believe that a portion of withheld union dues or other assessments will be used as political contributions and requires annual consent from the employee, the employer could well run afoul of RCW 41.59.100 if it is mistaken or if it inquires into a labor organization's use of funds. Justice Madsen observed that when there is a conflict between collective bargaining statutes and other statutes, RCW 41.56 prevails. Dissent: Employers Clearly Know Where Money is Going In his dissenting opinion, Justice Sanders lambasted the majority's willingness to excuse public employers from compliance absent some sort of direct knowledge of how the payroll deductions will be used: Now, if not then, it is patently obvious to anyone of educable age that the WEA will continue to use dues money for political purposes in the future just as it has in the past. Therefore future unauthorized deductions from employee salaries for political use cannot be justified under the pretense that the employer did not know what was going on, at least short of some overt change in WEA policy. And Just Who Are the Plaintiffs? Justice Talmadge wrote an interesting concurring opinion to emphasize his growing dismay with the "cavalier attitude" taken toward the court rule requiring amicus curiae to provide information about their identity and interest in the case. Although the organizations weighing in on the side of the plaintiffs had "high-sounding" names, the court knew nothing about them. While there was little mystery regarding the identity and mission of the WEA and its affiliates, he noted with irony that its opponent, the Evergreen Freedom Foundation, revealed nothing of itself to the court: Perhaps a healthy dose of "public disclosure" so vigorously sought by these organizations would be usefully applied to their own activities as well, so the public will know who supports and funds them when they purport to be acting in the public interest. Evergreen Freedom Foundation v. Washington Education Association, No.
67126-5, (Wa. S.Ct., May 18, 2000)
Division II of the Washington Court of Appeals ruled that
substitute teachers are excluded from continuing contract rights enjoyed by
full-time teachers. The court wrote that "classifying substitute teachers
as regular teachers entitled to continuing contract rights does not fit the
logic of the statutory system" that ties continuing contract rights to
length of service and seniority.
The Tacoma School District and the Tacoma Education Association negotiated an agreement that created a cadre of substitute teachers who were guaranteed as many as 160 days of work during the school year. The contract with each cadre substitute stated that it "is not subject to the continuing contract law as per RCW 28A.405.900" that excludes teachers hired to replace regular teachers on leave from continuing contract rights. When the employer eliminated the cadre program, cadre teachers sued, arguing that they were entitled to continuing contract rights. The appeals court affirmed the dismissal of the suit, noting that RCW 28A.405.900 does not cover certificated employees hired to replace certificated employees who have been granted sabbatical, regular, or other leave by school districts. The cadre teachers claimed that "leave" in this provision means long-term leave and not short-term absences such as sick leave. They contended that the only "replacement" teachers subject to the statute are those hired for a specific purpose or on an ad hoc basis without a written contract. The appeals court concluded that "leave" means any absence authorized by the district, including sick leave. The statute does not distinguish between long-term and short-term replacements, the court wrote, and interpreting the statute with that distinction leads to an anomalous result. The court found it illogical to grant continuing contract rights to short-term replacements while denying such rights to long-term replacements. The court's conclusion is supported by a 1975 opinion by the Attorney General who interpreted RCW 28A.405.900 to include sick leave. The teachers pointed out that they are covered by a separate section of the agreement for which there is no statutory reference. They argued that this proves the employer knew that RCW 28A.405.900 did not apply to them. However, the appeals court refused to read so much into the lack of a statutory reference. The cadre teachers also argued that substitutes "essentially stabled" in one school district, as they were, count as regularly-hired teachers and are not subject to RCW 28A.405.900. The court, again turning to the dictionary, concluded that "regular" teachers are those hired in a "normal" or "typical" fashion. For a teacher, this means entering into a contract where he/she promises to work a certain number of days, usually full-time, in return for a salary. The court found that the cadre substitutes fell short of this requirement. They were under contract and were promised a minimum amount of work, but they were not obligated to work a set number of days and were free to reject specific job offers. Moldt v. Tacoma School District, No. 24417-9-II (Wa. App., November 17,
2000)
Attacking a knotty problem often found in the
employer-employee relationship, the Personnel Resource Board dealt with
contract language on handling transfer requests in an interest arbitration
decision. The Washington Federation of State Employees proposed language
requiring the employer to interview every employee on the transfer list,
consider transfer requests by seniority, and furnish unsuccessful applicants
an explanation "of the good cause" for denial if requested. The
employer proposed the same language, but with the "good cause"
language omitted. Its proposal said simply that employees not selected will
be "furnished an explanation upon request."
The union argued that the current "best fit" language in the contract was too subjective and subject to abuse. At any rate, management should provide employees with a reason for not being selected so that the employee can improve his or her performance or challenge the decision if the reason is not legitimate. The employer argued that decisions on transfer can be challenged under other articles of the agreement. The union's language, however, would place the Board in the position of determining whether the reason for denial was legitimate. The employer also was concerned that the union language required "brutal honesty," which may not be the best thing for either the employee or the employer. The Board compromised on the language, inserting the phrase "specific reasons" for the "good cause" language proposed by the union. Upon request, an employee will be furnished "an explanation as to the specific reason(s) for not being selected." The Board deemed its language to balance the employer's rights to manage its workforce and the employees' right to understand why they were not selected for a transfer. WFSE v. Community Colleges of Spokane, District 17, PRB No. 00 ARB-21
(2000)
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The collective bargaining agreement between the Highline School District and the Public School Employees of Highline stated:
Each new hire shall remain in a probationary status for a period of not more than ninety (90) workdays following the hire date. Each employee new to a position shall remain in a probationary status for a period of not more than forty-five (45) workdays following the hire date. During this probationary period the District may discharge new employees at its pleasure, and employees new to a position for just cause.
The union argued that the demotion of the grievant to her former part-time position after she failed in her probation as a baker was a discharge that lacked just cause.
Arbitrator Jane Wilkinson disagreed that just cause was required for the demotion. To the arbitrator, the grievant was an "employee new to a position" who was given, by contract, a 45-day probation. A probation is commonly understood to mean a "trial period in a job." The contract language prevented the employer from terminating the employee for failing probation without just cause, but did not require just cause for the return of the employee to her former position. Accepting the union's view, Arbitrator Wilkinson stated, would require her to rewrite the contract "so as to turn the notion of probation on its head."
Racial Discrimination Unproven
The union also argued that the grievant's failed probation was a consequence of unlawful racial discrimination and a hostile work environment with discriminatory overtones. The arbitrator found that the union's argument failed on the facts. The union's evidence of racism was that a former kitchen lead worker made derogatory remarks concerning Native Americans before the grievant's promotion.
According to the arbitrator, the fact of the grievant's promotion tended to show that management "did not share any unfortunate and deplorable racist attitude" that the former employee possessed. In addition, "the weight of the evidence" was that the grievant never reported any racial hostility to her superiors. The grievant herself testified that there was no racial animus in the poor evaluations she received from management. The arbitrator observed that the employer went far beyond its contractual obligation in trying to help the employee to succeed by extending her probation an additional two months.
As to the hostile environment created by the former kitchen lead, the evidence indicated that it was rooted in a dispute unrelated to the lead's racist remarks or views. The grievant wrote in a diary or log that the kitchen lead "had always believed the grievant was out to get her in trouble." Although the grievant believed the former kitchen lead was hostile from the beginning, that employee did not learn until later that the grievant was Native American, making it unlikely the early hostility was racially motivated. Additionally, the grievant failed to prove that the current kitchen lead shared any racist beliefs. In fact, the evidence was that the grievant was happy when that employee was promoted to kitchen lead.
As to a hostile work environment among co-workers, the evidence failed to show that "it was connected to a general co-worker animus towards persons who are not white." On the other hand, the "evidence was credible and substantial" that the grievant was simply unsuccessful as a baker. The arbitrator noted that the grievant herself did not dispute the various mistakes cited by the employer over her extended probationary period.
Highline School District and Public School Employees of Highline (Arb. J.
Wilkinson, 1999)
About three weeks into the school year, Forrestal was offered the job and was given an Intent to Hire Form and a Certificated Employee Contract. The written offer stated that his employment was conditioned upon the background check and formal school board approval. He accepted the offer began working for the district. A month later, the school board approved his application. During the following month, the Washington State Patrol completed its background check that revealed that he had been convicted of fourth degree assault against his ex-wife in 1995. The superintendent advised him that he would recommend to the school board that the offer of employment be withdrawn, and that he could submit a written statement to the board. Forrestal declined to do so, and instead requested a hearing pursuant to RCW 28A.405.300 regarding whether probable cause existed to terminate his employment status with the district. The district denied the request.
RCW 28A.400 states that school district applicants can be employed on a conditional basis pending a background check. Forrestal argued that conditional employees are entitled to the protections granted by RCW 28A.405.300, which includes the probable cause hearing. He maintained he was a statutory employee because he was certificated and his contract was approved by the school board. Nevertheless, the court observed that he failed "to recognize that RCW 28A.400.303 added an additional requirement: a criminal history background check."
The court also rejected his argument that the statute only requires that a background check be conducted and "that because one was conducted on him, he automatically became a statutory employee." It called his argument "absurd" that "the Legislature did not require that the results of the investigation be satisfactory."
Finally, the court rejected the argument that the statute requiring background checks violates Article II, Section 37 of the Washington Constitution because it causes confusion between the rights of conditional employees under RCW 28.A.400 and those of statutory employees under RCW 28A.405 and upheld his dismissal.
Forrestal v Tukwila School District, No. 44259-7-I (Wa. App., Sept. 18,
2000)
Evaluations of his first two years were not encouraging. He rated below average in his teaching ability and although his record for publications was "excellent," the university was concerned that his publications were all co-authored and not published in any top tier journals. Trimble nevertheless commenced the tenure review process. All tenured department faculty members voted in favor of tenure, but the College Tenure Committee, comprised of faculty from within the College of Business and Economics but outside his department, recommended against tenure on the basis his annual performance reviews.
The Provost, who makes tenure decisions, denied tenure. Trimble appealed the decision to the Faculty Status Committee on the basis of age and sex discrimination. The Committee found no evidence of discrimination but was concerned that the university had not properly complied with its Faculty Manual by failing to document input from tenured department faculty. The Committee recommended that the tenure denial be set aside and Trimble be allowed to resubmit tenure materials. However, the college president nevertheless upheld the denial, stating that the university "substantially" complied with the Manual.
Faculty Manual Doesn't Promise Written Input
Trimble sued, arguing breach of contract, negligent misrepresentation and discrimination. In affirming the dismissal of his claims, the Washington Supreme Court's majority pointed out that the Manual allows tenured faculty considerable flexibility in how they will give their input. The court noted that Trimble was not promised written feedback. He argued that the university told him he was on a tenure track at the time of hire, and that it failed to inform him that applying for tenure after only three years of employment would be a serious handicap to obtaining tenure. The court's majority pointed out that Trimble admitted he was aware he would not be awarded tenure automatically. Moreover, when a written tenure system is in place, the court stated, "actual assurances of tenure do not create an expectation of continued employment."
Dissent: Employer's Admission Error Creates Triable Issue
In a dissenting opinion, Justice Sanders wrote that it is possible to conclude that the department's tenured faculty may not have evaluated Trimble at all. The two acting department chairs during his employment admitted they inadvertently and regrettably did not carry out annual "dry-run" tenure balloting among the department's tenured faculty as required by the Faculty Manual. The justice concluded that summary judgment was therefore inappropriate, explaining that requiring the university to play by its own rules "does not strip it of its prerogative to choose its tenured faculty members."
Trimble v. Washington State University, No. 67409-4 (Wn. S.Ct., February
24, 2000)