Arbitrator finds no contractual basis for claimed "constructive resignation"

Arbitrator Bruce McIntosh upheld a grievance filed by the Dayton Education Association on behalf of a teacher whose employment was terminated because of her alleged "constructive resignation."

Grievant was involved in  an "altercation" with her principal which included "some physical interaction" between her and the principal. Following this altercation, grievant was placed on paid administrative leave. In May of 2016 the Dayton Board of Education notified grievant that it had received information that while on leave she had accepted employment with a local charter school effective April 1 of that year. The Board deemed the acceptance of a position with the charter school while grievant was on administrative leave a "constructive resignation." It notified grievant that it was terminating the leave and would be seeking reimbursement for all payments it made to her after April 1.

The Association grieved this action, arguing that there was no contractual basis for a "constructive resignation," that there was no prohibition on grievant accepting alternate employment while she was on leave, and that the District's actions amounted to a termination without the procedural protections of the collective barging agreement and was without just cause. The Board maintained that in seeking and accepting a position with an incompatible work schedule grievant had "indisputably abandoned" her job with the Board of Education and that she therefore had constructively resigned her position. It asserted that it was therefore not required to show just cause or otherwise provide notice to the grievant.

Arbitrator McIntosh agreed with the Union. He noted:

       A review of the CBA reveals that there [sic] it does not deal with paid administrative leave nor with constructive resignation. Additionally, there was no evidence of any restrictions placed on Grievant while on Leave except that she could not report to work and her presence on school grounds would be considered trespass. To assert that her employment by the charter school prevented her from being available for work with her former employer with the direction by it not to venture on the school's property, appears to be, at best, an anomaly.
       The Arbitrator is unable to finds any contractual basis for Grievant's acceptance for a separate school contract to be "good and just cause" for termination pursuant to [the cba].

Arbitrator McIntosh ordered the School Board to pay grievant for whatever wages she did not receive for the balance of the school year, less any sums she received from the charter school. The Arbitrator's award can be found here.