Teacher recall decision based on seniority deemed arbitrable.


Byline: Barry Bridges

A Superior Court judge has upheld an arbitrator's decision that used seniority as the determining factor in deciding which of two qualified teachers should be recalled to an open position in the math department at a regional vocational school in Lincoln.

The William M. Davies, Jr. Career and Technical High School board of trustees argued that the arbitrator's action in directing the board to recall a more senior teacher was inconsistent with state statutes, regulations and advisory opinions of the commissioner of education, making the issue non-arbitrable.

But Judge William E. Carnes Jr. disagreed.

"The use of the seniority provision of the [collective bargaining agreement] in making recall decisions does not contradict state law," the judge wrote.

Further, Carnes found the arbitrator's decision did not interfere with the board's educational mission or its statutory non-delegable duty in selecting school personnel.

"[It] did not involve a policy such as curriculum or the basic qualifications of the position, but simply which of two qualified candidates should be recalled to the open position," Carnes wrote.

With those two determinations, the judge concluded that the dispute was arbitrable and ultimately confirmed the arbitrator's award.

The 16-page decision is William M. Davies, Jr. Career and Technical High School Teachers' Association/NEARI/NEA v. William M. Davies, Jr. Career and Technical High School Board of Trustees, Lawyers Weekly No. 61-082-18. The full text of the ruling can be found here.

'Seniority stranglehold'

Vincent F. Ragosta Jr., counsel for the board of trustees, said he still believes the seniority issue was non-arbitrable in light of applicable state statutes and regulations.

And he said the arbitrator erred in allowing seniority to be the "sole and controlling determinant" in recalling William Esser, a senior teacher who was certified in math but less experienced in the subject than teacher Emmanuel Ruiz.

"While their overall ratings as teachers in their respective fields were somewhat close, the junior teacher, Mr. Ruiz, edged out Mr. Esser based on Davies' qualitative evaluations of his teaching skills," Ragosta said.

While calling the decision "well-reasoned," Ragosta said it "overlook[ed] the statutory and contractual mandates of Davies to adhere to "staffing policies which ensure that all students are taught by educators of the highest possible quality."

Ragosta said it is Davies' educational...

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