Most, if not all, school districts and ESUs have a grievance procedure which allows staff to allege violations of the negotiated agreement or board policy relating to their employment. Absent a formal grievance procedure, certificated staff are guaranteed the ability to challenge an administrative decision through the chain of command, and/or to present their version of the facts surrounding a disciplinary action at a formal due process hearing by Neb. Rev. Stat. § 79-826. The issue that has arisen due to a recent Nebraska Supreme Court case is this: does a staff member have to use the district’s grievance procedure, and exhaust the appeal process within it, before filing a lawsuit? The Nebraska Supreme Court has indicated that when the grievance procedure is a term of the contract, the answer is “yes.”
New Case Law
In Armstrong v. Clarkson College, 297 Neb. 595 (2017), a nursing student sued the college for breach of contract. The student was put on “administrative probation” and removed from classes based on misconduct at a conference, and the college removed her from her program. While the case discussed the student’s claim in the context of the college’s grievance procedure as applied to the student, we believe the reasoning relating to grievance procedures will be applied to public schools and ESUs.
While the case contains other issues, the primary focus for public schools and ESUs is the Court’s analysis of whether the student was required to use the college’s grievance procedure before filing a lawsuit. Ultimately, the Court adopted Colorado’s stance that in the application of a grievance procedure, any ambiguity as to whether an individual must exhaust the grievance procedure is to be resolved in favor of using the grievance procedure as the exclusive remedy for challenging an administrative action. If an individual subject to a grievance procedure could simply bypass it even though they could have used it to pursue the relief they wanted, it would render grievance procedures toothless.
The Court elaborated on the reasons why the rule exists, saying that “the exhaustion requirement gives the school the opportunity to correct its own potential mistakes though its grievance procedure.” Courts generally do not want individuals to run to the courthouse and file a lawsuit when another remedy exists. It also pointed out that teachers subject to grievance procedures still have the ability to bypass the grievance procedures if they can show that filing a grievance would be futile, the grievance procedure offers an inadequate remedy, or the individual was prevented from using the grievance procedure. Finally, the Court stated that grievance procedures should be clear on applicability as much as possible, such as whether they are available to former employees.
Language that Could be Proposed During Negotiation
In light of the Court’s ruling, in order to bypass a district’s or ESU’s grievance procedures and head directly to court, a staff member would need to get explicit language into a negotiated agreement or policy that showed the grievance procedure was optional.
The NSEA is advising all of its negotiators to push for including one of the following provisions, depending upon where the grievance procedure is located:
Where a grievance procedure appears in board policy only: the parties agree that use of the board’s grievance policy is discretionary and is not a condition to presenting a claim for violation or variance of the Negotiated Agreement or an individual employment contract before a court of competent jurisdiction.
Where a grievance procedure exists within the negotiated agreement: the parties agree that use of the grievance procedure herein is discretionary and is not a condition to presenting a claim for violation or variance of this agreement or an individual employment contract before a court of competent jurisdiction.
Where a grievance procedure exists in both board policy and within the negotiated agreement: the parties agree that use of the grievance procedure in board policy and herein is discretionary and is not a condition to presenting a claim for violation or variance of this agreement or an individual employment contract before a court of competent jurisdiction.
Just Say “No"
We recommend saying “no” to any request to make your grievance procedure discretionary. As Armstrong makes clear, the NSEA is attempting to remove the grievance procedure exhaustion requirement. By softening the district’s grievance procedure requirement and turning it into an optional method for resolving conflict between staff and the administration, rather than a required one, districts and ESUs would needlessly allow themselves to be pulled into court for any perceived violation of a contract or policy.
While some grievances may have merit, it is the Armstrong Court’s clear position that the district or ESU should be permitted the opportunity to resolve these violations internally, rather than pay for unnecessary litigation. Grieving parties can still go to court once they have filed a grievance and appealed it as necessary according to board policy.
Conclusion
We think there are local political reasons to cite at the bargaining table when addressing this issue. Frivolous lawsuits will always exist, but by directing certificated staff to use internal grievance procedures before they are permitted to file in court the district will save valuable school resources, namely time and money. Should changes such as the ones discussed above be proposed during your negotiations with certificated staff we recommend you contact your school attorney, or call Karen, Steve, Bobby, or Tim.