Sunday, August 30, 2015

A tardy teacher, tenure and due process

A recent case involving a school board's efforts to revoke a teacher's tenure for excessive absence, and an arbitrator's decision rejecting that effort, has received considerable publicity (New Brunswick teacher was late more than 110 times, but district can't fire him;  $90,000-a-year teacher late for work 111 times but keeps his job;  Chronically late N.J. teacher: breakfast routine was downfall).  The award of Arbitrator David Gregory explains his rationale.

Grievant had been late 111 times over two academic years. The School Board sought to revoke his tenure. Grievant claimed that despite his tardiness he delivered a "superb educational experience" to his students. Arbitrator Gregory rejected the positions of both the School Board and the grievant, finding both extreme and untenable.

He found that the Board had proven chronic tardiness and that grievant's "cascades of tardiness" was never plausibly explained. While acknowledging grievant's "innovative" legal arguments  he largely rejected grievant's purported justification, noting:

Assuming arguendo that Respondent is "all business" once he arrives, his self serving inflated characterization of his substantive abilities misses the essential point. His students are fully entitled to receive Respondent's very best-efforts for the entire period, and not merely for that remaining portion of the period following Respondent's chronically late arrivals.

The Arbitrator observed that withholding increment increases did not appear to have improved grievant's punctuality. Nevertheless he found that revocation of tenure was unsupported, noting:

...Respondent is entitled to due process and fundamental fairness. Due process is best understood as that which is due under the circumstances. With a decade and a half of service, progressive discipline and due process sufficiently militate against summary discharge in this case. Once charges are so well proven, I believe that the Employer is usually entitled to the imposition of the penalty sought. This is the established Elkouri principle. This case presents the rare exception to the general rule, and is also in full accord with the Elkouri principle.

Accordingly, Arbitrator Gregory concluded that Grievant should remain in unpaid status for the chronic tardiness until January 1, 2016.

Arbitrator Gregory's award can be found here.

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