Tom Teacher had always felt underappreciated and underpaid, but now he knows why. Tom was chagrined to discover that he has been paid on the MA track, when in fact he has a Sixth Year Certificate. To make matters worse, he realized that he has been paid two steps below his actual experience. Tom immediately went to the Business Office to see how soon he would be getting the back pay owed him.
Earl Eyeshade, Director of Business Operations, quickly confirmed for Tom that he had been underpaid. Indeed, the problem went back for some six years, and the total amount was quite significant – some $24,000. Earl told Tom that, while his pay would be corrected for the future, there was no extra money in the budget and that Tom was therefore out of luck as regards his back pay claim.
Tom couldn't believe his ears. He immediately called up Mal Content, an old friend and one of the members of the Nutmeg Board of Education, to see what Mal could do. Mal told Tom not to worry; he would make sure that Tom got his money. Mal called Mr. Superintendent, but he was surprised when Mr. Superintendent told him that Tom would not be paid the salary that he had been shorted over the years.
When Mal gave Tom the bad news, Tom went right to Bruno, the representative of the Nutmeg Union of Teachers. Bruno was predictably outraged by the actions of the Administration, and he vowed to pursue the matter through the grievance procedure as far as he needed to. As expected, both Earl and Mr. Superintendent denied the grievance, but Tom was not overly concerned. In his grievance response, Mr. Superintendent had actually admitted that Tom had been underpaid for many years. Tom couldn't image how Mr. Superintendent would get around that fact at the Board level grievance hearing. He was soon to find out.
At the Board level grievance hearing last evening, Bruno presented Tom's grievance on behalf of NUTS and demanded the back pay. Indeed, given that Mr. Superintendent had admitted that Tom had not been paid the correct salary, Bruno also demanded an additional $4,500 in interest charges. However, veteran Board member Bob Bombast was not convinced, and he pressed Tom to explain how the underpayment had gone unnoticed for so many years. Tom did himself no favors when he responded. Tom told the Board members that his ex-wife had made his life very difficult by garnishing his pay for her alimony, and he had simply thought that that the shortfall was due to her claims.
When Bruno and Tom finished, Mr. Superintendent made a very brief presentation. He expressed regret that Tom had been underpaid, but he stated that the Board had no responsibility to make up the difference for the period before Tom filed his grievance. With that, Mr. Chairperson announced that the Board would deliberate, and he invited Mr. Superintendent to join the Board.
Bruno shot up and objected vociferously to such an "unfair" procedure. Mal agreed, claiming that Mr. Superintendent had his chance and that it was now time for the Board to make its decision alone. However, Mr. Superintendent insisted that he, as chief executive officer of the Board, had every right to attend the deliberations.
How should the Board decide this case, and should Mr. Superintendent be there when it does?
* * *
At the outset, it is important to note that the Board should include Mr. Superintendent in its deliberations. To be sure, there are situations in which the boards of education must remain impartial and may not communicate unilaterally with the superintendent. Student expulsion hearings and teacher tenure hearings are such situations, in which the board acts in accordance with statute and must be impartial as a matter of due process. Grievances, however, are creatures of contract, and the grievance procedure is an extension of the collective bargaining process. Accordingly, boards of education should include the superintendent in their deliberations. A grievance response can set a precedent that will affect how the contract will be interpreted in the future. Boards of education should not make such decisions without conferring directly with the superintendent.
On the merits, Tom's grievance presents an interesting question. Grievance procedures typically have a time limit for filing grievances, and they provide that grievances that are not filed within the specified number of days are considered waived. Notwithstanding his nasty divorce, Tom should have brought this problem forward promptly, and he did not. By failing to file a grievance sooner, Tom likely waived any claim for back pay for the earlier period.
Significantly, Tom's dereliction did not excuse the Administration from the duty to correct the problem going forward. While a failure to file a timely grievance can preclude all claims concerning a discrete act (e.g., an appointment), the contract violation here was ongoing – there was a violation every time Tom received a payment in the wrong amount. Arbitrators call such matters a "continuing grievance," and employers must correct such problems for the future. However, claims based on events outside the period for filing a grievance (here, salary payments) are waived.
Finally, Mal's actions were inappropriate. Responsibility for administering the contract is vested in the superintendent. A board member who is contacted about a pending grievance should simply refer the aggrieved party back to the superintendent. Mal had no business intervening and then responding back to Tom.
Mal's participation in the grievance hearing raises a larger question. When discharging their duties, board members are fulfilling a public trust. Board members are free to act in accordance with their conscience. However, since board members act on behalf of the public, they must take care to assure that they are acting on the basis of the public interest. Here, Mal is described as an old friend of Tom's. The question for Mal is whether that friendship could interfere with his ability to decide the grievance based on the facts presented, rather than based on personal loyalties or relationships. If his friendship with Tom would so interfere, or even if that friendship could create the appearance of a conflict, Mal would be well-advised to refrain from participating in the hearing. Indeed, since the Board is a deliberative body, it would not be enough to abstain from voting. Mal should withdraw from any involvement in the case, including the deliberations that precede any vote.