Arbitrator backs teachers' union on sick leave

School district did not take part in proceedings

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An arbitrator has decided in favor of the Douglas County teachers' union in a lawsuit about the teachers' sick-leave bank filed against the Douglas County School District. The arbitrator's decision is non-binding, and DCSD officials did not participate in the proceedings that led to arbitrator John Criswell's final report.

DCSD officials called the arbitrator's report an “improperly obtained opinion,” and said the district continues to seek a fair resolution to the issue.

The complaint surrounded DCSD's alleged refusal to allow employees to use the sick-leave bank after the district's collective bargaining agreement (CBA) with the teachers' union expired in 2012.

“The district's refusal to allow the employees, who previously earned sick leave, to use that accumulated sick leave or to use the sick-leave bank, was a violation of the employees' property rights they had earned by virtue of their previous work,” Criswell wrote in his April 30, 2014 report.

The teachers' union filed the lawsuit in Douglas County District Court in February 2013. Three teachers named as plaintiffs in the suit claimed harm from the loss of the sick-leave bank.

DCSD filed motions to dismiss the case in April 2013, saying the union lacked standing in its claims and had “failed to exhaust administrative remedies” included in the expired CBA. Using an arbitrator to resolve such issues is part of the process outlined under the CBA. The district court ordered those procedures followed.

Criswell, who served 13 years as a Colorado Court of Appeals judge, described the arbitration process as “somewhat unique,” because DCSD “refused to participate either in the selection of the arbitrator or any of the proceedings ...”

Criswell said he provided DCSD full notice of all steps, and proceeded on an ex-parte basis to resolve the issues.

His report recommends, among other things, that the district recognize as valid all sick leave accumulated by all employees who were subject to the expired agreement's terms and that it reimburse the three plaintiffs their fair share.

In an emailed statement attributed to school board president Kevin Larsen, DCSD said the union's lawsuit reflected its unhappiness “with the demise of its lucrative contract.” The statement also said the sick-leave bank was “fiscally irresponsible,” unfunded and came with unlimited liability, and that DCSD replaced it with a much-improved, fully funded, short-term disability plan.

“Rather than work toward a sensible resolution of its lawsuit, the union unilaterally pursued an impermissible and unilateral arbitration process,” Larsen's statement continues, adding that DCSD offered reasonable alternatives the union rejected.

“It is, therefore, not surprising that this improperly obtained opinion, fully bought and paid for by the union and involving only the union's participation, reflects precisely the union's desired outcome,” the statement reads. “The district gives the union's purchased opinion the weight it deserves. 

“We will continue to look to a fair, impartial, objective, and lawful process for speedy resolution of the union's baseless lawsuit against the district.”

Union president Courtney Smith said the district's failure to so far comply with the ruling is not surprising.

"It is disappointing that once again DCSD has chosen to ignore a legal decision — in this case an arbitrator's ruling,” she said. “However we are committed to seeing this lawsuit through to benefit the employees of DCSD.”

Smith said the lawsuit was stayed pending the arbitration process, but will resume if the district fails to comply with the arbitrator's ruling. 

Along with the sick-leave bank complaint, the DCF filed a second lawsuit against DCSD alleging unfair hiring practices. That case has not been resolved.