In this session we will utilize a hypothetical set of facts to explore issues related to collective bargaining and contract negotiations.  In particular, the hypothetical speaks to negotiations procedures, general rules of contract interpretation, the doctrine of “unilateral change” to conditions of employment, past practice and issues relating to withholding of services or the work to rule doctrine.

ASSIGNMENT

• Please review the Collective Bargaining Case Study
• Note the issues as you understand them for purposes of exchange or review views with classmates or the instructor.
• Draft a brief memorandum, using bullet points, to address the legal issues raised by the case study.
• After receiving the instructor’s reply, review the attached background materials. 

The committee has scheduled an executive session to review the current status of negotiations and potential “areas of difficulty.”  Please draft a brief memorandum, using bullet points, to address the legal issues raised by the case study below.

As the school superintendent you have been designated as the chief spokesperson for the school committee in contract negotiations with the teachers’ union. The contract expired on June 30, 2004. The parties have met 23 times since January of 2004 in an attempt to negotiate a successor agreement. When the contract expired in June the Association notified members that they may be returning to work in September “without a contract”; as a result, the committee determined by vote to extend the existing contract terms pending negotiation of a successor agreement.

Relations between the association and the school committee are strained. Six years ago the association went on strike for seven days as a result of the committee’s refusal to accept certain contract proposals. This year, the town manager has notified the superintendent that town employees have agreed to a three year program resulting in a reduction to town contributions for employee health insurance by 10% over three years. The contract language in the teachers agreement states simply that the teachers will have the same health insurance plan as is available to all town employees. The town implemented its contribution rate reduction on July 1, 2004. As the school district’s payroll services are provided by town hall, town hall employees reduced the town’s contribution towards health insurance premiums for all school department employees as of July 1st.

Through you the committee has made a proposal to implement in the school department the town’s changing health insurance program. The teachers have objected to the implementation of the change in premium contribution rates and have filed a grievance and an unfair labor practice as a result of what they allege is a “unilateral change” to employment conditions. You have also advised the teachers that the committee has no money to pay for teacher raises, beyond normal step increases and column changes, for the FY 05 but that the committee can negotiate a raise for the second and third years of the agreement. You have pointed out to the association that every 1% increase in the first year of a potential three year agreement will require the layoff of eight teachers to fund a raise. In order to fund unemployment costs associated with the eight layoffs you have also pointed out to the association that two additional teachers will have to be let go. The association has indicated that it would like to see salaries adjusted by 9% over the life of a three year agreement.

In addition to a number of other issues still open, a change in the high school schedule from a standard 7 period a day, 5 day week to a rotating 6 day schedule with longer periods has resulted in significant staff upheaval. The contract states that high school staff will receive one 47 minute prep period per day. Under the new schedule, most teachers will continue to receive a daily prep of a duration greater than 47 minutes. Some teachers, however, will not receive a daily prep in the schedule but have received double preparation periods on other days. In all instances, the aggregate number of minutes of preparation time per week under the new schedule exceeds the 235 minutes resulting from the present contract schedule of one 47 minute prep per day.

Starting around the first of November teachers began to picket school committee meetings and meet outside their respective buildings before the start of the student day to enter en masse. You have just been advised that the committee intends to rent a small office in the center of town to establish a “crisis center” and that teachers will begin a work to rule. The teachers have notified you that they intend to perform only the tasks required by the contract and have included in their written notification to you a list of 27 activities which they consider to be voluntary, and thus subject to work to rule limitations. Included on the list are, for example, a refusal to stay after school on days other than the contractually designated extra help day, a refusal to stay at parent/teacher conference nights beyond the designated two hour time period, and a refusal to provide letters of recommendation for high school seniors. Although you are a new superintendent to the district, the committee hired you based on your experience in other school districts, particularly with collective bargaining issues. The committee has never appropriated substantial sums for labor counsel and thus looks to you for guidance on contract negotiations and collective bargaining issues.

printed version

On the general process of negotiations, many of you may already have access to “Getting to Yes” Although the “GTY” process breaks down in financial conflicts it does provide an excellent frame work for understanding the communications process in negotiations. 

As an interesting take on confrontational, “zero sum” negotiations, each class member should read

• The Melian Dialogue, excerpted from Thucydides’ history, The Peloponnesian War.

Unilateral changes to existing employment see

• School Committee of Newton v. Labor Relations Commission, 388 Mass. 557 (1983)

Work to rule in withholding of services see

• Lenox Education Association v. Labor Relations Commission, 393 Mass. 276

What are the limits of lawful work-to-rule activities by public school teachers in st1:State>Massachusetts?

1.         When do work-to-rule activities constitute an “illegal strike”?

See Lenox Education Association v. Labor Relations Commission 393 Mass. 276 (1984)

·        When teachers concertedly refuse to perform services customarily performed by public school teachers (such as grading papers, meeting with parents and students) that will be considered a “strike”.

·        When teachers concertedly refuse to perform any services after the end of the contractual “work-day” that will also be considered a “strike”.

o       These types of concerted work-to-rule activities constitute a “strike” as defined by M.G.L. c. 150E § 1:

“a public employee’s refusal, in concerted action with others, to report for duty, or his willful absence from his position, or his stoppage of work, or his abstinence in whole or in part from the performance of the duties of employment as established by an existing collective bargaining agreement or in a collective bargaining agreement expiring immediately preceding the alleged strike, or in the absence of any such a agreement, by written personnel policies in effect at least on year prior to the alleged strike.

§         “Duties of employment” may be implied.  They do not have to be expressly stated in the collective bargaining agreement or in personnel policies.

§         Ask yourself what is the “common law of the shop”?  What services do all teachers traditionally perform?  Are teachers refusing to perform those services?

2.         When are work-to-rule activities just work-to-rule activities?

See Lenox Education Association v. Labor Relations Commission 393 Mass. 276 (1984)

·        When teachers are not acting in a concerted manner (i.e. individually)

·        When teachers are refusing to do work that is truly voluntary such as publishing a monthly newsletter for parents or hosting special events for parents (ie. something that not all teachers are expected to do)

o       These types of work-to-rule activities are protected by M.G.L. c. 150E § 2.

o       M.G.L. c. 150E § 10(a)(1) specifically prohibits public employers  from interfering, restraining, or coercing any employee in the exercise of any right guaranteed under § 2.

 3.         Do teachers’ work-to-rule activities constitute an “illegal

strike”?

See Massachusetts Labor Relations Commissions at www.mass.gov/lrc

a.        Strike Investigation

See Labor Relations Commission v. Fall River Education Ass’n382 Mass. 465 (1981)

·        The school committee can petition the Massachusetts Labor Relations Commission (a quasi-judicial government agency) to conduct a “strike investigation” pursuant to 456 CMR 16.03.

o       During a strike investigation, the burden is on the public employer to present witnesses or documentary evidence to show that the employees are engaged in an illegal strike.

o       If the Labor Relations Commissions finds that the employees are participating in an illegal strike, the Commission can issue a written directive requiring the teachers to stop all “striking” activities.

·        In Labor Relations Commission v. Fall River Education Ass’n, the striking teachers refused to comply with the Commission’s directive and continued their work stoppage activities.  Ultimately, the Commission took the teachers’ union to court where a judge issued an injunction enjoining the teachers from continuing to participate in the strike and imposed a prospective fine of $20,000 per day for every day the strike continued.

o       In the end, the Fall River teachers’ strike lasted nearly a month and the union’s fines totaled $260,000.

o       However, the Supreme Judicial Court of Massachusetts held that prospective fines must be calculated by the character and magnitude of the threatened harm, the probable effectiveness of the sanction, the defendant’s financial resources, and the seriousness of the burden on the defendant. 

b.        Disciplinary Action

See Utility Works, Local 466 v. Labor Relations Comm’n 389 Mass. 500 (1983).

·        A public employer may discipline employees who are engaged in (or are about to engage in) an unlawful strike pursuant to M.G.L. c 150E § 9A(b)

·        A public employer may discharge employees who engage in an illegal strike pursuant to M.G.L. c 150E § 15.

o       The school committee can discipline teachers who participate in work-to-rule activities before petitioning the Labor Relations Commission to make a strike investigation.

o       Despite the petitioning process outlined in section 9A(b), existing case law states that a public employer does not have to file a petition with the Labor Relations Commission prior to disciplining its employees for participating in an illegal strike.