Legal Mailbag – 4-15-21

By Attorney Thomas B. Mooney, Neag School of Education, University of Connecticut

The “Legal Mailbag Question of the Week” is a regular feature of the CAS Weekly NewsBlast. We invite readers to submit short, law-related questions of practical concern to school administrators. Each week, we will select a question and publish an answer. While these answers cannot be considered formal legal advice, they may be of help to you and your colleagues. We may edit your questions, and we will not identify the authors.

Please submit your questions to: legalmailbagatcasciacdotorg.

Dear Legal Mailbag:

We are fully back in school now, but it has been a long year. By and large, the teachers in my building are doing OK, but one of the senior teachers is a real pain every time I ask him to do something. As do the other teachers in my building, he has a duty assignment one period per day. However, the other day, I saw him in the teachers’ lounge holding forth when he should have been watching the second-floor bathroom. I approached him and asked if I could speak to him privately, but he told me that there are no secrets in our school and that I could speak freely.

Given his invitation, I got right to the point. I told him that he needed to get upstairs to monitor the bathroom ASAP per his duty assignment. However, rather than running upstairs to cover his duty assignment, he leaned back in his chair and announced grandly that he had been meaning to talk with me about the assignment. He explained that he had been monitoring the bathroom for the better part of a year, and he had not seen a single problem. In short, he informed me, he wouldn’t be monitoring the bathroom anymore because it is a waste of his time. Moreover, he told me that he is sick of my criticisms, and he demanded union representation before we talked any further.

As the principal of this school, I have better things to do than debate with this fellow every time I need to give him an assignment. Do I really have to justify to this teacher my reasoning for making a duty assignment? And what’s the story with union representation?

Fed Up


Dear Fed Up:

This teacher is skating on thin ice. Insubordination is defined as “willful defiance of authority,” and this teacher’s decision not to cover his assigned duty was certainly insubordinate conduct. He deliberately decided not to do what he was told to do by his supervisor.

In this regard, it may be helpful to review the “work now, grieve later” rule. A well-established principle of labor relations, this rule is important to maintaining order in the workplace. A directive from management must be obeyed, even if the employee thinks that the directive is unfair or somehow in violation of the applicable collective bargaining agreement. The employee has the right to grieve, and indeed may be encouraged to do so if he or she contests a directive. But disagreement over a directive from a supervisor should not interfere with getting the work done. Rather, under the “work now, grieve later” rule, employees must obey directives of their supervisors in the moment, and they are free later to contest that directive through the grievance procedure. If it turns out that the directive was in fact improper, an appropriate remedy can be fashioned through the grievance procedure.

When administrators are confronted with insubordinate behavior (e.g., “I am not signing that!”) by a teacher, they may wish to remind the recalcitrant employee that there are only six reasons specified in the Teacher Tenure Act for which a school district can terminate the contract of a tenured teacher. One of them is “insubordination against reasonable rules of the board of education.” Conn. Gen. Stat. § 10-151(d). Teachers should not want to invite such a charge.

The teacher’s request for union representation is a different story. Principals have the right to talk directly to teachers to convey information, such as duty assignments, without the involvement of union representatives. But unionized employees are entitled to union representation whenever management seeks to elicit information from the employee over which the employee reasonably fears for his or her job security. Accordingly, principals and other supervisors must permit union representation if (1) the teacher or other employee is asked to respond to questions, (2) those answers could result in discipline, and (3) the teacher or other unionized employee asks for union representation before answering the questions posed. Significantly, employees must invoke the right to union representation, and management does not have to give a Miranda-type warning about union representation before asking questions of employees.

Here, it was natural for you to ask this teacher more questions in order to understand his reasons for not covering his duty assignment, and his responses could lead to disciplinary action. Accordingly, once he asked for union representation, the teacher was entitled to have such representation before you could require him to answer more questions.