Keller Thoma Prevails in Major Arbitration Decision Impacting 'Student Safety Initiative'

In a case handled by our office, an Arbitrator has issued an important Arbitration Decision and Award involving the statutes known as the “Student Safety Initiative.”

The case before the Arbitrator involved a custodial employee who had been convicted of a felony for a non-listed offense that occurred during the Grievant’s off-duty hours, and did not occur on the School District’s premises. The School Board voted not to approve the Grievant’s continued employment, and the Superintendent concurred. The Grievant was discharged. The Union argued that the School District had not shown the required “nexus” between the employee’s conviction and his job, and that therefore, the Grievant’s termination violated the provision of the collective bargaining agreement requiring”just cause” for discharge.

In denying the grievance, the Arbitrator reviewed Section 1230g(8) of the School Code, and held as follows:

There are two ways of reading this Michigan law as it applies to the grievance before me. First, it makes a school employee convicted of a non-listed felony (as the Grievant) an employee at the option of the school district. Second, it codifies off-duty felonies for “non-listed offenses” as a species of contractual off-duty “just cause” for termination, with the decision of whether termination is not to be imposed left to the written option of both “the superintendent or chief administrator and the board or governing body of the school district.”

Under this second reading, the statute would establish a “nexus” (or adverse effect) between certain off-duty misconduct (i.e. a non-listed offense which is a felony) and contractual “just cause.” In other words, the statute would prevent an outside neutral decision-maker (court or arbitrator) from applying contractual “just cause” language to overrule a school district’s decision to discharge a school employee for having committed an off-duty felony.

To disregard subsection (8) of MCLA 380.1230g would violate Article 3, Section 3.2 of the parties’ agreement. Section 3.2 provides that “specific and express [e.g. just cause] terms...are [to be] in conformance with...the laws of the State of Michigan.” Rejecting the application of subsection (8) in my Award also would pose a challenge on public policy grounds. (emphasis in original)

Consequently, the Arbitrator’s Opinion and Award should be of major significance to School Districts in defending claims that an employee’s felony conviction for off-duty conduct cannot support a discharge under a collective bargaining agreement.

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