Arbitrator Rules That SEIU Local 509 Has Right To Enforce Anti-Discrimination Provision For Probationary Teacher

Attorney Patrick Bryant persuaded a neutral arbitrator that
SEIU Local 509 has a right to protect a probationary teacher from unlawful discrimination. Many collective bargaining agreements guarantee that permanent employees are protected from discipline or discharge that is not supported by "just cause." At the same time, many of these same agreements provide no such guarantee for probationary employees.

The collective bargaining agreement at issue concerned teachers at a quasi-public educational employer. Just cause protections do not apply for the first three years of a teacher's employment. At the same time, the collective bargaining agreement promises that no employee will be discriminated against on the basis of a protected characteristic or protected activity - including union activity. The teacher here received positive reviews during her first two years of employment. During the third year, the teacher filed complaints about sexual misconduct and a grievance about an improper evaluation. The Employer investigated the complaint and agreed to remedy the improper evaluation. Filing grievances and complaints generally are protected under state and federal labor law. Unlike the first two years, the Employer gave all negative evaluations and then ultimately terminated the teacher.

The Union grieved the termination, as well as the negative evaluations during the teacher's last probationary year, as discrimination (or retaliation) for the teacher's protected activity.

The Union and the Employer first agreed to let an arbitrator decide whether the Union could enforce the anti-discrimination provision on behalf of a teacher who is not otherwise protected by just cause. This is known as a dispute about arbitrability. The neutral arbitrator agreed with Attorney Bryant and Local 509 that the grievance/arbitration procedure can be used to protect even probationary teachers from unlawful discrimination.

Now that an arbitrator ruled the Union has a right to arbitrate this dispute, the Union now must present evidence in support of the argument that the teacher was in fact discriminated against on the basis of protected activity.

This arbitrability decision is an important victory for unions seeking to protect vulnerable probationary employees against unlawful and discriminatory decisions.