Union County Education Association v. Union County Board of Education

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
May 14, 2014 Session
UNION COUNTY EDUCATION ASSOCIATION v. UNION COUNTY
BOARD OF EDUCATION
Appeal from the Chancery Court for Union County
No. 6368 Andrew R. Tillman, Chancellor
No. E2013-02686-COA-R3-CV-FILED-AUGUST 28, 2014
A Union County schoolteacher was twice interviewed by school administrators in an
investigation of charges regarding the teacher’s alleged improper conduct. Both times, the
teacher’s request to have a representative from the Union County Education Association
(“the Association”) present with him for the investigatory interview was denied. After the
investigation was complete, the teacher was not disciplined and no adverse action was taken
against him. The Association brought this action alleging that the Union County Board of
Education (“the Board”), acting through its agents, violated the Professional Educators
Collaborative Conferencing Act of 2011 (“the Collaborative Conferencing Act”), Tenn. Code
Ann. § 49-5-603 (2013), which provides that “[p]rofessional employees have the right to self-
organization, to form, join or be assisted by organizations, to participate in collaborative
conferencing . . . and to engage in other concerted activities for the purpose of other mutual
aid and benefit. . . .” The Association sought a declaratory judgment that the Board’s refusal
to allow the teacher to have a representative present was an unlawful act under Tenn. Code
Ann. § 49-5-606. The trial court granted the Board summary judgment on the ground that
the Association “had no injury in fact and therefore lacked standing to proceed with this
action.” We hold that the rights provided to professional employees under section 603 of the
Collaborative Conferencing Act include the right to have a representative of his/her
organization present, upon the employee’s request, at an investigative interview where the
employee reasonably believes the investigation may result in disciplinary action against him
or her. We further hold that the Association has standing to pursue this action.
Consequently, we vacate the trial court’s judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Vacated; Case Remanded
C HARLES D. S USANO , J R., C.J., delivered the opinion of the Court, in which D. M ICHAEL
S WINEY and J OHN W. M CC LARTY, JJ., joined.
Richard L. Colbert and Courtney L. Wilbert, Nashville, Tennessee, for the appellant, Union
County Education Association.
Mary Ann Stackhouse and Janet Strevel Hayes, Knoxville, Tennessee, for the appellee,
Union County Board of Education.
OPINION
I.
In April of 2012, the schoolteacher,1 who was working in the Union County school
system, was summoned to a meeting with administrative officials for the purpose of
addressing and investigating allegations of misconduct by the teacher that had been made by
students. The teacher, a member of the Association, requested that he be accompanied to the
meeting by a representative of the Association. Susan Oaks, a supervisor of instruction with
Union County schools, conducted the investigation. When Ms. Oaks arrived for the meeting,
two others were present with the teacher – a fellow teacher from the same school, and a
representative from the Association. Ms. Oaks, acting on the direction of the Union County
director of schools, told the teacher that the others would not be allowed to be present with
him during the meeting. He was alone with Ms. Oaks and the acting principal of the school
for the first investigatory interview. Ms. Oaks described the allegations that had been made
against the teacher, reading certain written statements that had been provided by students,
and asked the teacher to provide a written statement in response. They scheduled a second
meeting where Ms. Oaks would pick up the teacher’s response and provide him with typed
copies of the students’ statements with their names redacted. When Ms. Oaks arrived for the
second meeting, the same two individuals were with the teacher. He again asked that they
be allowed to be present at the meeting. Ms. Oaks again declined his request.
Ms. Oaks passed the information she gathered from the investigation to the director
of schools, who made the decision regarding what to do about the misconduct allegations.
Ultimately, the teacher did not receive any discipline or other adverse action resulting from
the investigation.
The Association filed this action on July 12, 2012, alleging that the Board violated the
Collaborative Conferencing Act by refusing the teacher’s requests to be accompanied by an
1
The name of the schoolteacher has been redacted throughout the record on appeal. The Board’s
brief explains that the Board “has, throughout the investigation and subsequent litigation, attempted to handle
the complaints with professionalism and sensitivity. Accordingly, the Board of Education is not disclosing
the identity of the teacher at issue.” We agree with this approach.
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Association representative. The trial court granted summary judgment to the Board on the
sole ground that the Association lacked standing. The Association timely filed a notice of
appeal.
II.
The issue is whether the trial court correctly granted summary judgment to the board
based upon the court’s determination that the Association had no injury in fact and therefore
lacked standing to proceed with this lawsuit. This issue requires us to address these
interrelated questions: (1) whether Tenn. Code Ann. § 49-5-603 provides a professional
employee the right to have a representative of his/her organization present, upon the
employee’s request, at an investigative interview where the employee reasonably believes
the investigation may result in disciplinary action against him or her; and (2) whether the
Association has met the requirements to establish its “organizational” or “associational”
standing to bring this action on behalf of its members. These are questions of law that we
review de novo. Pickard v. Tenn. Water Quality Control Bd., 424 S.W.3d 511, 518 (Tenn.
2013) (“Interpretations of statutes involve questions of law which the appellate courts review
de novo without a presumption of correctness”); Dossett v. City of Kingsport, 258 S.W.3d
139, 143 (Tenn. Ct. App. 2007) (“A trial court’s determination of whether a party has
standing to pursue a cause of action is a conclusion of law.”). This appeal presents no
disputed issues of material fact.
III.
The teacher is not a party to this action. The Board argues that any rights provided
to professional employees under the Collaborative Conferencing Act are given to individuals
only, not teacher associations such as the Association. As a consequence, the Board asserts
that the trial court correctly determined that the Association did not have standing to file this
lawsuit. The Association argues that the Board clearly violated the Collaborative
Conferencing Act, which specifically provides for the remedy the Association seeks – (1) a
judgment that the Board acted unlawfully in refusing the teacher’s requests for assistance in
the interview, and (2) an order that the Board cease and desist from such unlawful acts. See
Tenn. Code Ann. § 49-5-606(c). The Association further contends that it has standing to
bring this action on behalf of its members under the doctrine of organizational standing. This
doctrine, as will be discussed further below, recognizes that “[n]otwithstanding the absence
of injury to itself, an organization may have standing solely as the representative of its
members.” Citizens for Collierville, Inc. v. Town of Collierville, 977 S.W.2d 321, 323
(Tenn. Ct. App. 1998).
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The doctrine of standing – “ ‘a judge-made doctrine which has no per se recognition
in the rules,’ is essential for a resolution on the merits of a legal controversy.” Fannon v.
City of LaFollette, 329 S.W.3d 418, 424 (Tenn. 2010) (quoting Knierim v. Leatherwood,
542 S.W.2d 806, 808 (Tenn. 1976)). The Supreme Court has recently reiterated the general
principles governing a standing analysis as follows:
Courts use the doctrine of standing to determine whether a
litigant is entitled to pursue judicial relief as to a particular issue
or cause of action. ACLU of Tenn. v. Darnell, 195 S.W.3d 612,
619 (Tenn. 2006); Knierim v. Leatherwood, 542 S.W.2d 806,
808 (Tenn. 1976). The proper focus of a determination of
standing is a party’s right to bring a cause of action, and the
likelihood of success on the merits does not factor into such an
inquiry. Darnell, 195 S.W.3d at 620; Petty v. Daimler/Chrysler
Corp., 91 S.W.3d 765, 767-68 (Tenn. Ct. App. 2002). Every
standing inquiry requires a “careful judicial examination of a
complaint’s allegations to ascertain whether the particular
plaintiff is entitled to an adjudication of the particular claims
asserted.” Allen v. Wright, 468 U.S. 737, 752, 104 S. Ct. 3315,
82 L. Ed. 2d 556 (1984).
Our jurisprudence recognizes two categories of standing that
govern who may bring a civil cause of action: non-constitutional
standing and constitutional standing. Non-constitutional
standing focuses on considerations of judicial restraint, such as
whether a complaint raises generalized questions more properly
addressed by another branch of the government, and questions
of statutory interpretation, such as whether a statute designates
who may bring a cause of action or creates a limited zone of
interests. Constitutional standing, the issue in this case, is one
of the “irreducible . . . minimum” requirements that a party must
meet in order to present a justiciable controversy.
To establish constitutional standing, a plaintiff must satisfy
“three ‘indispensable’ elements.” Darnell, 195 S.W.3d at 620
(quoting Petty, 91 S.W.3d at 767). First, a party must show an
injury that is “distinct and palpable”; injuries that are
conjectural, hypothetical, or predicated upon an interest that a
litigant shares in common with the general citizenry are
insufficient in this regard. Id. Second, a party must demonstrate
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a causal connection between the alleged injury and the
challenged conduct. Id. (citing Mayhew v. Wilder, 46 S.W.3d
760, 767 (Tenn. Ct. App. 2001)). While the causation element
is not onerous, it does require a showing that the injury to a
plaintiff is “fairly traceable” to the conduct of the adverse party.
Id. (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332,
342, 126 S. Ct. 1854, 164 L. Ed. 2d 589 (2006)). The third and
final element is that the injury must be capable of being
redressed by a favorable decision of the court.
City of Memphis v. Hargett, 414 S.W.3d 88, 97-98 (Tenn. 2013) (footnote and some internal
citations omitted).
Regarding the organizational standing doctrine, this Court has recognized that,
[w]hen an individual brings an action, he must show that he has
a personal stake in the outcome that would be greater than the
general public. An organization, on the other hand, generally
has standing to bring suit on behalf of its members for
prospective relief, such as a declaratory judgment action, even
if it has not suffered injury, if it alleges sufficient facts to
establish a case or controversy had the members themselves
brought suit.
Rains v. Knox Cnty. Bd. of Commissioners, No. 711, 1987 WL 18065 at *1 (Tenn. Ct. App.
W.S., filed Oct. 9, 1987). In ACLU of Tenn. v. Darnell, the Supreme Court recognized the
following test for organizational standing, adopted by this Court in Curve Elementary Sch.
Parent & Teacher’s Org. v. Lauderdale Cnty. Sch. Bd., 608 S.W.2d 855, 858 (Tenn. Ct.
App. 1980) and initially set forth by the United States Supreme Court in Hunt v. Wash. State
Apple Adver. Comm’n., 432 U.S. 333, 343 (1977):
To establish standing, an association . . . must show that: (1) its
members would otherwise have standing to sue in their own
right; (2) the interests it seeks to protect are germane to the
organization’s purpose; and (3) neither the claim asserted, nor
the relief requested, requires the participation of individual
members in the lawsuit.
Darnell, 195 S.W.3d at 626. In Hunt, the U.S. Supreme Court observed that courts are more
likely to find organizational standing when the nature of the relief sought is prospective:
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[W]hether an association has standing to invoke the court’s
remedial powers on behalf of its members depends in substantial
measure on the nature of the relief sought. If in a proper case
the association seeks a declaration, injunction, or some other
form of prospective relief, it can reasonably be supposed that
the remedy, if granted, will inure to the benefit of those members
of the association actually injured. Indeed, in all cases in which
we have expressly recognized standing in associations to
represent their members, the relief sought has been of this kind.
432 U.S. at 343 (quoting Warth v. Sedlin, 422 U.S. 490, 515 (1975)) (emphasis added).
Where the source of the cause of action is statutory, as in the present case, we must
closely examine the statute to determine if it may be interpreted as granting a plaintiff the
right to judicial relief:
When the claimed injury involves the violation of a statute, the
court must determine “whether the . . . statutory provision on
which the claim rests properly can be understood as granting
persons in the plaintiff’s position a right to judicial relief.”
Metro. Air Research Testing Auth., Inc. v. Metro. Gov’t of Nashville & Davidson Cnty.,
842 S.W.2d 611, 615 (Tenn. Ct. App. 1992).
The Association argues that the Collaborative Conferencing Act grants professional
employees, upon request, the right to have a representative of his/her association present at
an interview where the employee reasonably believes the investigation may result in
disciplinary action against him or her. The Board disagrees, arguing that the Act provides
no such right to employees, and therefore the Association has no organizational standing
because it cannot demonstrate the first prong of the test – that “its members would otherwise
have standing to sue in their own right.” Darnell, 195 S.W.3d at 626. The right at issue here
has become known as a “Weingarten right” because it was first recognized by the U.S.
Supreme Court in the case of NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975). In
Weingarten, the Court affirmed the National Labor Relations Board’s decision that an
“employer’s denial of an employee’s request that her union representative be present at an
investigatory interview which the employee reasonably believed might result in disciplinary
action constituted an unfair labor practice” under the National Labor Relations Act
(“NLRA”). Id. at 252. The Weingarten Court held that the right to have a union
representative present was provided by section 7 of the NLRA, which provides:
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Employees shall have the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, and shall also have
the right to refrain from any or all of such activities . . .
29 U.S.C.A. § 157.
Three years after Weingarten, the Tennessee General Assembly enacted the Education
Professional Negotiations Act (“EPNA”), which included the following nearly identical
provision in EPNA’s section 7:
Professional employees shall have the right to self-organization,
to form, join, or be assisted by organizations, to negotiate
through representatives of their own choosing, and to engage in
other concerted activities for the purpose of professional
negotiations or other mutual aid or protection; Provided,
professional employees shall also have the right to refrain from
any or all such activities.
Tenn. Pub. Acts 1978, ch. 570, § 7 (originally codified at Tenn. Code Ann. § 49-5506 and
later recodified at § 49-5-603). This provision remained unchanged until 2011, when the
legislature repealed EPNA and replaced it with the Collective Conferencing Act. Tenn. Code
Ann. § 49-5-603 currently provides as follows:
Professional employees have the right to self-organization, to
form, join or be assisted by organizations, to participate in
collaborative conferencing with local boards of education
through representatives of their own choosing and to engage in
other concerted activities for the purpose of other mutual aid
and benefit; provided, that professional employees also have the
right to refrain from any or all such activities.
(Emphasis added.)
The U.S. Supreme Court’s Weingarten ruling applies to private-sector employees.
In 1978, Congress extended the Weingarten right to federal public-sector employees. See
5 U.S.C.A. §§ 7101(b), 7114(2). It appears that a substantial majority of jurisdictions
considering whether the Weingarten right is recognized for state public-sector employees
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under state law have concluded that it is. See, e.g., City of Clearwater (Fire Dept.) v. Lewis,
404 So. 2d 1156, 1160 (Fla. Dist. Ct. App. 1981); City of Marion v. Weitenhagen, 361
N.W.2d 323, 327-28 (Iowa Ct. App. 1984); Mass. Corr. Officers Fed. Union v. Labor
Relations Comm’n, 675 N.E.2d 379, 380 (Mass. 1997); Wayne-Westland Educ. Ass’n v.
Wayne-Westland Cmty. Schools, 439 N.W.2d 372, 373 (Mich. Ct. App. 1989); In re Univ.
of Med. & Dentistry of N.J., 677 A.2d 721, 729-30 (N.J. 1996); Cleveland Ass’n of Rescue
Employees v. State Employment Relations Bd., 730 N.E.2d 426, 431 (Ohio Ct. App. 1999);
Commonwealth v. Penn. Labor Relations Bd., 916 A.2d 541, 548 (Pa. 2007); Warwick Sch.
Comm. v. State Labor Relations Bd., No. 79-2170, 1980 WL 336101 at *2-3 (R.I. Super.
Apr. 23, 1980). The few state courts that have decided their state law does not protect its
public employees with the Weingarten right have done so on the ground that their respective
statutes are worded substantially dissimilarly to the NLRA. See In re N.Y City Transit Auth.
v. State Pub. Employee Relations Bd., 864 N.E.2d 56, 58 (N.Y. 2007); City of Round Rock
v. Rodriguez, 399 S.W.3d 130, 135 (Tex. 2013).
As we have noted, Tenn. Code Ann. § 49-5-603 is very similar to, and was clearly
modeled after, section 7 of the NLRA. Thus, although the NLRA is not applicable to this
case, and the Weingarten opinion is not binding, we consider them to be highly informative
and persuasive. We presume the General Assembly was aware of the state of the law,
including the Weingarten decision, when it enacted the EPNA in 1978 and the Collaborative
Conferencing Act in 2011. Lavin v. Jordon, 16 S.W.3d 362, 368 (Tenn. 2000) (“We are not
inclined to concede the extreme similarity in language to mere coincidence, because the
‘Legislature is presumed to know the state of the law on the subject under consideration at
the time it enacts legislation.’ ”).
In determining that the Weingarten “right inheres in § 7’s guarantee of the right of
employees to act in concert for mutual aid and protection,” 420 U.S. at 256, the U.S.
Supreme Court reasoned as follows:
The action of an employee in seeking to have the assistance of
his union representative at a confrontation with his employer
clearly falls within the literal wording of § 7 that “[e]mployees
shall have the right . . . to engage in . . . concerted activities for
the purpose of . . . mutual aid or protection.” Mobil Oil Corp.
v. NLRB, 482 F.2d 842, 847 (CA7 1973). This is true even
though the employee alone may have an immediate stake in the
outcome; he seeks “aid or protection” against a perceived threat
to his employment security. The union representative whose
participation he seeks is, however, safeguarding not only the
particular employee’s interest, but also the interests of the entire
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bargaining unit by exercising vigilance to make certain that the
employer does not initiate or continue a practice of imposing
punishment unjustly. The representative’s presence is an
assurance to other employees in the bargaining unit that they,
too, can obtain his aid and protection if called upon to attend a
like interview. Concerted activity for mutual aid or protection
is therefore . . . present here[.]
Id. at 260-61 (footnote omitted). The High Court further observed that the Weingarten right
provides potential benefits not only to the employee and his or her union or association, but
also to the employer:
The Board’s construction also gives recognition to the right
when it is most useful to both employee and employer. A single
employee confronted by an employer investigating whether
certain conduct deserves discipline may be too fearful or
inarticulate to relate accurately the incident being investigated,
or too ignorant to raise extenuating factors. A knowledgeable
union representative could assist the employer by eliciting
favorable facts, and save the employer production time by
getting to the bottom of the incident occasioning the interview.
Certainly his presence need not transform the interview into an
adversary contest.
Id. at 262-63 (footnote omitted). The New Jersey Supreme Court has reasoned similarly,
stating:
There are other policy justifications for granting New Jersey
public employees the protection of the Weingarten rule. As one
commentator has explained, an investigatory interview of an
employee often entails an atmosphere of isolation and
intimidation of the employee. See Anthony R. Baldwin,
Weingarten and the Taylor Law—A Claimed Difference Without
Distinction, 7 Hofstra Lab. L.J. 123, 127-29 (1989). In such a
setting, employees may be less than articulate in attempting to
defend themselves. Employees may not realize that they could
exonerate themselves through recounting to the employer certain
mitigating circumstances. Thus, an employee’s defense may be
less than compelling, squandering the last chance of exculpation
before punishment is delivered.
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In re Univ. of Med. & Dentistry of N.J., 677 A.2d at 729.
The Collaborative Conferencing Act specifically enumerates the following rights
given to professional employees under the Act: (1) to self-organization; (2) to form, join or
be assisted by organizations; (3) to participate in collaborative conferencing . . . through
representatives of their own choosing; and (4) to engage in other concerted activities for the
purpose of other mutual aid and benefit. (Emphasis added). We observe that the second
right – “to be assisted by organizations” – is arguably more strongly worded in employees’
favor than the NLRA, which gives employees the right to “assist labor organizations.”
Giving the words “to be assisted by organizations” their plain and ordinary meaning, the
activity at issue here, a request for assistance from an organization representative in an
investigatory interview, is encompassed by this clear and unambiguous language of Tenn.
Code Ann. § 49-5-603.
Moreover, as the Weingarten Court similarly held, the right also clearly falls within
the literal wording of the Act giving employees the right “to engage in other concerted
activities for the purpose of other mutual aid and benefit.” Neither the Collaborative
Conferencing Act nor the NLRA defines “concerted activities.” After Weingarten, the U.S.
Supreme Court further explored the meaning of this phrase in NLRB v. City Disposal
Systems, Inc., 465 U.S. 822, 830-31 (1984), stating:
The term “concerted activit[y]” is not defined in the Act but it
clearly enough embraces the activities of employees who have
joined together in order to achieve common goals.
* * *
Although one could interpret the phrase, “to engage in concerted
activities,” to refer to a situation in which two or more
employees are working together at the same time and the same
place toward a common goal, the language of § 7 does not
confine itself to such a narrow meaning. In fact, § 7 itself
defines both joining and assisting labor organizations – activities
in which a single employee can engage – as concerted activities.
When an employee asks to exercise his or her Weingarten right to have assistance under the
appropriate circumstances, “two or more employees” – the interviewed employee, the
assisting association representative, and, in a broader sense, the association itself – “are
working together at the same time and the same place toward a common goal” – ensuring that
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all information pertinent to the investigation is made known to the employer, and that the
employee is not treated in a manner that unfairly impinges on his or her rights. Therefore,
even under the more restricted definition that the High Court in City Disposal Systems
described as too “narrow” to fully encompass “concerted activity,” the activity at issue here
qualifies. We hold that the Collaborative Conferencing Act provides the right to have an
organizational representative present, upon the professional employee’s request, at an
investigative interview where the employee reasonably believes the investigation may result
in disciplinary action against him or her.
Tenn. Code Ann. § 49-5-606(a)(2) provides that “[i]t is unlawful for a board of
education or its management personnel to: . . . [i]nterfere with, restrain or coerce employees
in the exercise of the rights guaranteed in § 49-5-603.” Section 606(c) provides a judicial
remedy for such an unlawful act:
(1) A complaint of an unlawful act shall be filed with, or
initiated by the board of education. If no reasonable resolution
is reached between the parties, a complaint may be filed in the
chancery court of the county where the local education agency
is located.
* * *
(3) The court is empowered to prevent any board of education
or its agents, or organizations, associations, professional
employees, or their agents, from engaging in any unlawful act.
(4) If, upon the preponderance of the evidence taken, the court
is of the opinion that a party named in the complaint has
engaged in or is engaging in any such unlawful act, then the
court shall state its findings of fact, issue an order requiring the
party to cease and desist from the unlawful act, and take
affirmative action including resumption of collaborative
conferencing or reinstatement of employees. The order may
further require the party to make reports from time-to-time
showing the extent to which it has complied with the order.
(Emphasis added.)
We are of the opinion that the fact that the teacher was not disciplined as a result of
the investigation is immaterial. The employee was injured, under the express terms of the
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statute, when the Board interfered with and restrained his Weingarten right to be assisted by
the Association and to engage in concerted activity for mutual aid or benefit. No further
injury is required to convey standing to seek the remedy established by the statute. Thus, the
Association has established the first prong of the organizational standing test by showing that
its members would otherwise have standing to sue in their own right.
We have no hesitancy in finding that the Association has also met the second prong
by showing that “the interests it seeks to protect are germane to the organization’s purpose.”
Clearly, a primary purpose of the Association is to act collectively, or in a concerted effort,
for the mutual aid, benefit, and protection of its members. In International Union, United
Auto., Aerospace & Ag. Implement Workers of Am. v. Brock, 477 U.S. 274 (1986), the
Court addressed the question of “whether the UAW may proceed solely as a representative
of those of its members injured,” stated that “[i]t has long been settled that [e]ven in the
absence of injury to itself, an association may have standing solely as the representative of
its members,” Id. at 281, and further observed as follows:
[T]he doctrine of associational standing recognizes that the
primary reason people join an organization is often to create an
effective vehicle for vindicating interests that they share with
others. “The only practical judicial policy when people pool
their capital, their interests, or their activities under a name and
form that will identify collective interests, often is to permit the
association or corporation in a single case to vindicate the
interests of all.” The very forces that cause individuals to band
together in an association will thus provide some guarantee that
the association will work to promote their interests.
Id. at 290 (internal citations omitted).
Our review of the record and the Collaborative Conferencing Act establishes that the
third and final prong of the organizational standing test has been met, because “neither the
claim asserted, nor the relief requested, requires the participation of individual members in
the lawsuit.” Darnell, 195 S.W.3d at 626. The statute, which expressly provides the right
“to be assisted by organizations,” does not require individual participation. As we have
noted, the issue presented is one of law, and the relief requested is prospective and
declaratory in nature, as provided by the statute. As the Missouri Supreme Court recently
observed,
Where an association seeks only a prospective remedy, it is
presumed that the relief to be gained from the litigation “will
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inure to the benefit of those members of the association actually
injured.” [Hunt, 422 U.S.] at 515. Accordingly, requests made
by an association for prospective relief generally do not require
the individual participation of the organization’s members.
Conversely, where an association seeks a remedy such as money
damages, the participation of its individual members is
necessary to determine the particular damages to which each
affected member is entitled.
St. Louis Ass’n of Realtors v. City of Ferguson, 354 S.W.3d 620, 624 (Mo. 2011) (internal
citation omitted).
The Board argues that because the subject at issue here, the investigation of
allegations of teacher misconduct and potential discipline, is not a term or condition of
employment that is subject to the Act’s collaborative conferencing requirement, the
Association cannot have the right to take action to vindicate a member’s Weingarten right.
Tenn. Code Ann. § 49-5-608 sets forth a list of terms and conditions of employment that are
subject to the collaborative conferencing requirement, providing as follows:
(a) A local board of education shall be required to participate in
collaborative conferencing with professional employees, or their
designated representatives, if any, with respect to only those
terms and conditions of employment that are specified in this
section. Such terms and conditions include and are limited to
the following:
(1) Salaries or wages;
(2) Grievance procedures;
(3) Insurance;
(4) Fringe benefits, but not to include pensions or retirement
programs of the Tennessee consolidated retirement system or
locally authorized early retirement incentives;
(5) Working conditions; except those working conditions which
are prescribed by federal law, state law, private act, municipal
charter or rules and regulations of the state board of education,
the department of education or any other department or agency
of state or local government;
(6) Leave; and
(7) Payroll deductions; except as provided in subsection (b).
(b) No other terms or conditions of employment shall be the
subject of collaborative conferencing between the board of
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education and the professional employees or their
representatives . . .
It is undisputed that the Act does not require collaborative conferencing on the subject at
issue here. But section 603 provides professional employees rights additional to
collaborative conferencing, stating that they “have the right to . . . participate in collaborative
conferencing . . . and to engage in other concerted activities for the purpose of other mutual
aid and benefit.” (Emphasis added). The legislature’s use of the term “other” indicates its
intent to recognize the right to engage in concerted activity in addition to collaborative
conferencing, such as the Weingarten right discussed herein.
The Board also argues that Tenn. Code Ann. § 49-5-608(5)(c), which provides that
“[t]he director of schools shall be permitted to communicate with professional employees
employed by the local board of education concerning any subject relevant to the operation
of the school system, including the terms and conditions of professional service that are
subject to collaborative conferencing, through any means, medium or format the director
chooses,” precludes the Association from having standing to bring this action. The right of
a director of schools to communicate with professional employees is not relevant to the
question presented here, however, and does not preclude a holding that an employee has a
concomitant Weingarten right that can be enforced – under the Collaborative Conferencing
Act – by action of the Association.
IV.
In summary, we hold that the rights provided to professional employees under section
603 of the Collaborative Conferencing Act include the Weingarten right to have an
organizational representative present, upon the employee’s request, at an investigative
interview where the employee reasonably believes the investigation may result in disciplinary
action against him or her. We further hold that the Association has organizational standing
to pursue this action on behalf of its members. The judgment of the trial court is vacated, and
the case remanded for further action consistent with this opinion. Costs on appeal are
assessed to the appellee, Union County Board of Education.
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CHARLES D. SUSANO, JR., CHIEF JUDGE
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