Improvement #4: Limit "Just Cause" Discipline and Discharge Clauses
"Just cause" refers to contractually established standards of conduct that an employee must breach before he can be disciplined or discharged. Due process is the legal procedure instituted when an employer wishes to discipline or discharge an employee who has breached the "just cause" standard.
"Just cause" is distinct from an "at will" employment arrangement. "At will" means either party may terminate the employment relationship at any time for any reason. The "just cause" standard, on the other hand, is typically applied to employees who have a property interest in the employment relationship. Teachers who have received tenure status, for example, enjoy property rights in their employment relationships.
Many school boards seem not to understand the implications of the "just cause" standard, as evidenced by the number of contracts that extend this standard to all employees in the bargaining unit-including probationary teachers who are still being evaluated for their competence. After all, it sounds reasonable that no employee should be disciplined or discharged unless there was both justice and cause. However, the "just cause" legal standard is not that simple.
The "just cause" standard and the resulting due process proceeding for employee discipline or discharge is a burdensome and time-consuming process for districts that wish to remove ineffective, unproductive, or even criminal teachers from the classroom.
Under this standard, a school board can face increased and unplanned expenses in processing employee discipline and discharge matters, including substantial liability for teacher re-instatement or back pay in the event of an unfavorable arbitration or tenure ruling.
Unions do have a legal obligation to represent their members when discipline or discharge is unwarranted or in violation of the collective bargaining agreement. However, the "just cause" standard has sometimes been stretched to include situations that make a travesty of procedural protections intended to guard good teachers from arbitrary and capricious decisions.
One of the most outrageous examples took thirteen years of litigation and cost the Ann Arbor Public Schools district in excess of $350,000 in attorney fees and back pay for an ex-teacher who was imprisoned in Jackson for murder.
An employer must be able to answer "yes" to all seven of the following questions in an arbitration hearing to successfully sustain a "just cause" discipline or discharge decision:
One employee discharge case took thirteen years of litigation and cost the Ann Arbor Public Schools district in excess of $350,000 in attorney fees and back pay for an ex-teacher who was imprisoned in Jackson for murder.88
Did the employer forewarn the employee of possible disciplinary consequences of conduct?
Was the rule or directive involved reasonably related to the orderly, efficient operation of the business?
Before administering discipline, did the employer properly investigate to determine that the employee did violate or disobey the rule or directive?
Was the employer's investigation done in a fair and impartial manner?
Through the investigation, did the employer obtain enough evidence to prove the employee was, in fact, in violation of the rule or directive?
Was the rule, directive, and penalty applied fairly and without discrimination?
Was the discipline applied reasonably related to the gravity of the offense and was the amount of discipline reasonable given the employee's overall record?89
Some arbitrators have held that the standard of progressive discipline does not apply to certain offenses: alcohol on the job, theft, lying, cheating, and violations of criminal statutes reasonably related to the performance of the employer's business operation. Any off-duty misconduct must also be reasonably related to the employer's business purpose.
School officials are often suspicious of the extent to which a union will pursue a matter and, as a result, may fail to discipline or discharge poor or disorderly teachers until well after their conduct has deteriorated seriously. School officials who fear legal action from unions may choose to retain teachers who are not effective or productive in educating students. They may also give large severance settlements instead of discharges to poorly performing teachers or supply good recommendations for poor teachers seeking employment at another school.
The collective bargaining agreements in many districts extend the "just cause" discipline and discharge standard to cover probationary teachers, even though school boards are legally obligated to provide "just cause" only to tenured teachers.
1. School boards should limit the "just cause" standard to include only tenured teachers and provide a less rigid standard for probationary teachers, who are still being evaluated for their competence.
School boards are legally obligated to provide "just cause" employment only to tenured teachers. School boards should carefully review their collective bargaining agreements for any language that makes a "just cause" standard applicable to probationary teachers, and instead specify an annual employment arrangement for them with the following language:
Probationary employees are employed on an annual contract basis, renewable on an "at will" basis, during their probationary period of employment and may be disciplined during that period for any reason as determined appropriate by the school board.
2. School districts should update their collective bargaining agreements to reflect changes in the law regarding the length of teachers' "probationary" status.
In 1994, the Michigan Teacher Tenure Act was amended to establish a four-year probationary period for teachers before they could gain tenure. There are still more than 200 collective bargaining agreements that contain the pre-1994 provisions of a two-year probationary period with a possible extension for a third year.
School boards should modify their agreements to reflect present law, and take advantage of the longer probationary period to thoroughly evaluate teachers before allowing them tenure and a "just cause" standard of discipline and discharge.
3. School boards and administrators should carefully follow the established seven-point test when building a case for the "just cause" discipline or discharge of a tenured teacher.
Arbitrators are unlikely to uphold the discipline or discharge of an employee if the school district does not properly follow and document the steps showing "just cause." School boards and administrators who adhere to the requirements for "just cause" will avoid unnecessarily costly and unfavorable arbitration rulings.