The Massachusetts Teachers Association (MTA) recently won a hard-fought arbitration over the termination of a paraprofessional employee (also known as a “para”) in the Ashburnham-Westminster Public Schools. After five days of hearing, Arbitrator Gary Altman ruled that the School District did not have just cause to discharge the MTA member. Following the ruling, the School District reinstated the para in accordance with the arbitrator’s instructions. The MTA was represented in the arbitration proceeding by Sandulli Grace attorney John M. Becker. He was assisted by Local Union President Beth Wojnas and MTA Uniserv consultant Paul Ryan.
The case arose at the end of the 2009-2010 school year when, after several successful years as a para in a difficult special needs program that uses applied behavioral analysis (ABA), the para received a scathing end-of-year evaluation that recommended she be terminated from her employment. This came as a shock because: (1) the Union had negotiated the evaluation as a tool for improvement and growth, not discipline and (2) this para had not received any prior discipline or otherwise been warned that her performance was not satisfactory. Furthermore, the para disputed the truthfulness and accuracy of her supervisor’s criticisms. In many cases, the para’s supervisor criticized her for behavior that had been reported (inaccurately) to the supervisor from third parties.
At the arbitration, the Union introduced evidence that (1) the allegations against the para were false; and (2) the employer failed to use progressive discipline. The arbitrator issued a decision based on the second theory, in a stirring endorsement of the principle that employers must value their employees and give them opportunities to improve, instead of blindsiding them:
[W]hen an employee has been discharged for being unable to perform in a satisfactory manner, arbitrators consider whether the employee was offered a reasonable opportunity to demonstrate satisfactory performance, or whether the steps of progressive discipline have been followed. The purpose of progressive discipline for performance related problems is to put the employee on notice to improve his or her performance, and if the employee is unable to perform in a satisfactory manner, to then impose more severe discipline. In the present case there was absolutely no progressive discipline.
As a remedy, the arbitrator ordered the School District to reinstate the employee to a paraprofessional position. The discharged para had been earning a higher salary as an ABA para, so the Union had asked for her to be reinstated to an ABA position, but the arbitrator did not restrict the School District to ABA positions, thus allowing the School District to reinstate the para to a lower paying position, at least until contractual bumping rights allow the para to bump into an equivalent job. Despite this glitch, this award overturning a discharge was a significant victory for the employee and for the MTA.
