WisBar News: School District’s Act 10 Argument Fails in Teacher Discharge Case :

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  • WisBar News
    October
    28
    2013

    School District’s Act 10 Argument Fails in Teacher Discharge Case 

    Joe Forward
    Legal Writer

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    Oct. 28, 2013 – A school district must reinstate a fired teacher and pay her lost wages and benefits, an appeals court has ruled, despite the school district’s argument that restrictions on collective bargaining by public employees barred that result.

    During the 2010-11 school year, the School District of Kewaskum discharged teacher Linda Kiser. At the time, there was a collective bargaining agreement in place. It said teacher disciplinary matters would go to arbitration for a final, binding decision.

    The teacher’s union, on behalf of Kiser, challenged the discharge and the matter went to arbitration. The arbitrator ruled in favor of Kiser, requiring the district to reinstate her job and pay her back wages and benefits. The school district appealed.

    The school district argued that Act 10 – a law that restricts the collective bargaining rights of public employees to base wages only – prevented the arbitrator from ordering reinstatement and back pay after the collective bargaining agreement had expired.

    But in School District of Kewaskum v. Kewaskum Education Association, 2013AP220 (Oc. 23, 2013), a three-judge panel for the District II Court of Appeals ruled the arbitrator had jurisdiction, despite the expiration of the collective bargaining agreement.

    “The change in state law had no effect on the existing collective bargaining agreement or the arbitrator’s ability to order a remedy for a violation committed during the agreement’s term,” wrote Judge Paul Reilly for the three-judge panel.

    Kiser, a special education teacher, was fired in November 2010. The school district alleged that Kiser used impermissible physical force against students.

    Those allegations were not credible and any physical contact was merely “incidental,” the arbitrator ruled, ordering reinstatement and back pay as a remedy. By the time of that decision, the collective bargaining agreement had expired and Act 10 was in place.

    The school district asked the Washington County Circuit Court to vacate the arbitration decision on several grounds, including the ground that the arbitrator lacked jurisdiction.

    However, the circuit court said the arbitrator had jurisdiction and upheld the rulings. The appeals court recently agreed the arbitration panel did not exceed its authority.

    “We find that the arbitrator retained jurisdiction over the dispute to fashion the award in this case and that the award did not exceed the arbitrator’s powers,” Judge Reilly wrote.

    Kiser filed her grievance while the collective bargaining agreement was in effect, the panel noted, and state laws cannot impair rights under existing contracts.

    The appeals panel also rejected the school district’s argument that the arbitrator manifestly disregarded the law and the rulings violate public policy by condoning immoral conduct that endangers the health, safety, and welfare of students.

    “An arbitrator does not violate public policy by finding that a teacher who has not engaged in immoral conduct, despite the allegations of students and school officials, should be reinstated,” wrote Judge Reilly, noting the district did not provide clear and convincing evidence that overturning the arbitrator’s decision was warranted.