In the case of Cox v. Dayton Pub. Schools Bd. of Edn., 2018-Ohio-2656, while recognizing the right of a teacher to elect between the grievance procedure in a collective bargaining agreement (“CBA”) and the statutory termination process, an Ohio appellate court held that a teacher knowingly and voluntarily waived the right to demand a hearing on the teacher’s termination under R.C. 3319.16 because the teacher exceeded the time to bring a written demand.
In this case, the CBA governing the teacher’s employment contained two options for contesting a termination which the teacher could individually elect to use: arbitration or a R.C. 3319.16 statutorily mandated hearing before the school board. The union began arbitration proceedings on the teacher’s behalf and the teacher actively participated in the arbitration. Afterword, the teacher wished to use the statutory process to contest her termination and the school board refused arguing that the teacher waived her right to the statutory process based on the election of arbitration. The teacher argued she did not waive her right to the statutory process by electing to use arbitration because the union began arbitration proceedings without her permission.
The appellate court determined that a teacher cannot waive the statutory right to request a hearing on the issue of termination unless the waiver of those rights is knowing and voluntary. The appellate court also determined that participation in union-led arbitration is not a knowing and voluntary waiver. However, the appellate court found that the teacher – in this case – had waited beyond the time limit provided to request a statutory hearing and further that this acted as a knowing and voluntary waiver to use the statutory process.
This case demonstrates the difficulty in denying statutory rights to teachers and that language matters when drafting CBAs. School districts wishing to avoid duplicative defense of termination decisions should seek to negotiate arbitration provisions that are crystal clear regarding an election of remedies and should explicitly state that arbitration is also elected by the teacher when the union requests arbitration.
To read this case, click here.
Authors: Matthew John Markling and the McGown & Markling Team.
Note: This blog entry does not constitute – nor does it contain – legal advice. Legal jurisprudence is like the always changing Midwestern weather. As a result, this single blog entry cannot substitute for consultation with a McGown & Markling attorney. If legal advice is needed with respect to a specific factual situation, please feel free to contact a McGown & Markling attorney.