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Metropolitan Detroit Bureau of School Studies Wayne State University McGregor Conference Center Detroit, Michigan February 24, 2015 Download this presentation.

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Presentation on theme: "Metropolitan Detroit Bureau of School Studies Wayne State University McGregor Conference Center Detroit, Michigan February 24, 2015 Download this presentation."— Presentation transcript:

1 Metropolitan Detroit Bureau of School Studies Wayne State University McGregor Conference Center Detroit, Michigan February 24, 2015 Download this presentation at www.luskalbertson.com/mb2015 Lusk & Albertson, P.L.C. Robert A. Lusk, Esq. William G. Albertson, Esq. Robert T. Schindler, Esq. 40950 Woodward Avenue, Suite 350 Bloomfield Hills, MI 48304-5129 (248) 258-2850

2 What should I do, and when should I do it? 2

3  Preparation for bargaining should start well before your first session at the table  Begin with review of both economic and non-economic needs  Plan and strategize the district’s needs, wants, and course of action  Ensure administration and BOE are on the same page 3

4  Review current collective bargaining agreement for:  Ambiguous or unclear language  Keep file on this throughout the year as well  Troublesome language that you would like to change  Prohibited subjects of bargaining  Just because you have audited in the past doesn’t mean you shouldn’t do it again – the law, or understanding of it, has changed or become clearer over the years.  Consider things that you would like to add  More often then not, we only think about what we want to remove, but there may be something that you want to add...  If using an outside individual to bargain, get them involved now 4

5 MCL 423.215: (3)Collective bargaining between a public school employer and a bargaining representative of its employees shall not include any of the following subjects: * * * (4)... the matters described in subsection (3) are prohibited subjects of bargaining between a public school employer and a bargaining representative of its employees, and, for purposes of this act, are within the sole authority of the public school employer to decide. 5

6 “Collective bargaining as a process requires both parties to confer in good faith - - to listen to each other. MCL 423.215(1); MSA 17.455(15)(1). In these subsections, the Legislature simply has removed the statutory requirement that public school employers listen to their employees and instructed the employers not to collectively bargain with regard to these subjects. In effect, the Legislature simply classified the disputed subjects as illegal subjects of collective bargaining.” Michigan State AFL-CIO v MERC, 212 Mich App 472, 486; 538 NW2d 433, 441 (1995) 6

7  Either party to negotiations may refuse to discuss a prohibited subject (although may voluntarily do so).  Public employer may act unilaterally with respect to any prohibited subject without bargaining to agreement or impasse.  Neither party may maintain to impasse a proposal pertaining to a prohibited subject.  Any provision in a collective bargaining agreement covering a prohibited subject is not enforceable.  Either party may refuse to continue or carry over within a new contract any existing provision pertaining to a prohibited subject.  A party may not demand bargaining over a prohibited subject in bargaining once the other side has notified it will not bargain over it. Michigan State AFL-CIO v MERC, 453 Mich 362 at n 9, 380 (1995); Troy School District (Operating Engineers), 21 MPER 37 (2008); Wyoming Public Schools, MERC Case No. C01 L-234 (unpublished decision on motion, October 15, 2002); Ionia Public Schools, 28 MPER 58 (2014). 7

8 (a)Who is or will be the policyholder of an employee group insurance benefit. This subdivision does not affect the duty to bargain with respect to types and levels of benefits and coverages for employee group insurance.... (b) Establishment of the starting day for the school year and of the amount of pupil contact time required to receive full state school aid under section 1284 of the revised school code... and under section 101 of the state school aid act of 1979.... (c) The composition of school improvement committees established under section 1277 of the revised school code.... 8

9 (d) The decision of whether or not to provide or allow interdistrict or intradistrict open enrollment opportunity in a school district or the selection of grade levels or schools in which to allow an open enrollment opportunity. (e) The decision of whether or not to act as an authorizing body to grant a contract to organize and operate 1 or more public school academies under the revised school code.... 9

10 (f) The decision of whether or not to contract with a third party for 1 or more non-instructional support services; or the procedures for obtaining the contract for non-instructional support services other than bidding described in this subdivision; or the identity of the third party; or the impact of the contract for non-instructional support services on individual employees or the bargaining unit. However, this subdivision applies only if the bargaining unit that is providing the non-instructional support services is given an opportunity to bid on the contract for the non-instructional support services on an equal basis as other bidders. Secretarial included - Reese Public School District v Reese Professional Support Personnel Association MEA/NEA, Case No 316528, unpublished opinion of the COA (December 30, 2014). 10

11 (g) The use of volunteers in providing services at its schools. (h) Decisions concerning use and staffing of experimental or pilot programs and decisions concerning use of technology to deliver educational programs and services and staffing to provide that technology, or the impact of those decisions on individual employees or the bargaining unit. (i) Any compensation or additional work assignment intended to reimburse an employee for or allow an employee to recover any monetary penalty imposed under this act. (j) Any decision made by the public school employer regarding teacher placement, or the impact of that decision on an individual employee or the bargaining unit. 11

12 (k)Decisions about the development, content, standards, procedures, adoption, and implementation of the public school employer's policies regarding personnel decisions when conducting a staffing or program reduction or any other personnel determination resulting in the elimination of a position, when conducting a recall from a staffing or program reduction or any other personnel determination resulting in the elimination of a position, or in hiring after a staffing or program reduction or any other personnel determination resulting in the elimination of a position, as provided under section 1248 of the revised school code...any decision made by the public school employer pursuant to those policies, or the impact of those decisions on an individual employee or the bargaining unit. (l)Decisions about the development, content, standards, procedures, adoption, and implementation of a public school employer's performance evaluation system adopted under section 1249 of the revised school code... or under [the TTA] decisions concerning the content of a performance evaluation of an employee under those provisions of law, or the impact of those decisions on an individual employee or the bargaining unit. 12

13 (m) For public employees whose employment is regulated by [the TTA] decisions about the development, content, standards, procedures, adoption, and implementation of a policy regarding discharge or discipline of an employee, decisions concerning the discharge or discipline of an individual employee, or the impact of those decisions on an individual employee or the bargaining unit. For public employees whose employment is regulated by [the TTA] a public school employer shall not adopt, implement, or maintain a policy for discharge or discipline of an employee that includes a standard for discharge or discipline that is different than the arbitrary and capricious standard provided under section 1 of article IV of [the TTA]. (n) Decisions about the format, timing, or number of classroom observations conducted for the purposes of section 3a of article II of 1937 (Ex Sess) PA 4, MCL 38.83a, decisions concerning the classroom observation of an individual employee, or the impact of those decisions on an individual employee or the bargaining unit. 13

14 (o) Decisions about the development, content, standards, procedures, adoption, and implementation of the method of compensation required under section 1250 of the revised school code... decisions about how an employee performance evaluation is used to determine performance-based compensation under section 1250 of the revised school code... decisions concerning the performance-based compensation of an individual employee, or the impact of those decisions on an individual employee or the bargaining unit. (p) Decisions about the development, format, content, and procedures of the notification to parents and legal guardians required under section 1249a of the revised school code.... (q) Any requirement that would violate section 10(3) – Freedom to Work. 14

15  Projected deficit or surplus  Current budget trajectory  Projected student counts  Cost of benefits and whether changes should be made  Whether major economic changes are necessary  Concessions  Compression or expansion of salary schedule  Outsourcing 15

16  Other factors that must be considered:  80/20 vs Hard Cap  What is the District using?  Does it intend to switch?  Is outsourcing a consideration here?  2011 PA 54  Limits potential increases 16

17  Meet with bargaining team and discuss needs and wants - prioritize  Development of overall bargaining strategy  Don’t just focus on teachers – treatment of all units should be considered (whether or not you are bargaining them at the same time)  Meet with Board of Education to discuss and plan strategy  May take several meetings  Make sure that team and BOE are on the same page – especially in difficult bargaining  Prepare BOE for union responses  Coordinate team’s priorities and the BOE’s 17

18  Decide on your course of bargaining – i.e., economics first, non- economics first, full package proposals  Begin to craft proposals  Don’t wait until the last minute  You want time to review and dissect both concepts and language  When prepared, contact union about beginning bargaining (if they haven’t reached out already)  Notify union president or bargaining representative of any prohibited subjects in the contract that the District will not bargain over 18

19  When to start?  If seeking concessions or other major changes in the contract – as soon as the union will agree  Otherwise, getting to the table in April or May should be sufficient  PA 54 has taken the rush out of it for employers  First meeting  Express any overarching themes the district has in negotiations  Decide on any ground rules  Not necessary to have them  Permissive subject – if agreed to they are binding 19

20  Prepare a financial presentation for the union when beginning to discuss economic proposals  Could be first session if starting with economics or doing package proposals  Present current budget and projected numbers  This will be the precursor to your economic proposal so use it show why you are going where you are  If the economic bargaining is coordinated with other units or non-unit individuals, use this time to demonstrate and discuss that fact 20

21  Determine and try to implement your desired pace of bargaining  Consistent with overall goals  Understand that certain time periods it will be difficult to get a meeting and plan for that  Use deadlines where you can – whether real or perceived  Hopefully working toward resolution  If not, begin impasse breaking tools 21

22  What is it, how do I get there, and why is it important?  MERC has described as the point where the positions of both parties have solidified to the point where further bargaining is futile  MERC decides impasse – based on totality of the circumstances  Employer may implement last best offer on subject of impasse  Does not end duty to bargain, merely requirement to maintain status quo 22

23  Impasse Breaking Tools  Mediation  State appointed mediator meets with parties  Mediator provided by state free of charge  Conducts bargaining sessions  Fact Finding  Non-binding process where independent third party reviews positions of each side and prepares an opinion for the parties  Purpose is to make public the positions of the parties and the decision of the fact-finder  Run similar to an arbitration – but more of a presentation  Do we need to use all of the tools? 23

24  Effect of expiration:  That contract no longer exists  Ionia Public Schools, 28 MPER ¶58 (2014) – Language of CBA does not carry over after expiration, whether dealing with a mandatory or prohibited subject  Mandatory conditions carry over and may not be unilaterally altered absent impasse  All other aspects of the contract – permissive subjects – may be suspended  All prohibited subjects cease to exist immediately  PA 54 kicks in  School District “shall pay wages and benefits at levels and amounts that are no greater than those in effect on the expiration date of the” CBA.  No steps, lane changes, COLA, longevity, etc.  Any additional cost in health care must be born by employees  Retroactivity not allowed 24

25  Default is hard cap  May do 80/20, but board must approve every year  Amounts/levels are total for all employees receiving coverage  Amount includes total medical benefit plan costs:  This does not include payment in lieu of insurance  This does include:  Insurance agent or company commissions  “Any additional amount the public employer is required to pay as a fee or tax under the” ACA. – added 2013 PA 269, effective January 1, 2014. 25

26  “Medical benefit plan coverage year” means the 12-month period after the effective date of the contractual or self- insured medical coverage plan that a public employer provides to its employees or public officials. MCL 15.562(g).  Decatur Public Schools, 27 MPER ¶41 (2014)  80/20 v Hard Cap is a policy decision to be made by the employer  Employer must continue to bargain over “health care benefits and the costs of such benefits to the extent that the costs of those benefits are within the parameters of the public employer’s choice of the options provided by PA 152.” 26

27  MERC does not have jurisdiction to interpret PA 152  Employer acting in good faith to comply with PA 152 does not violate the PERA  Shelby Twp, 28 MPER ¶21 (2014)  City of Southfield, 28 MPER ¶43 (2014)  Watersmeet Twp School District, 28 MPER ¶36 (2014)  West Iron County Public Schools, 28 MPER ¶46 (2014) 27

28 Uncharted Territory… 28

29  Overview  Legal Perspective  Practical Perspective  Assumptions (RAL)  Student Achievement Should be Addressed  Good Teachers are a Big Part of the Answer  You Get What You Pay For 29

30  The Law  Section 1250 of Revised School  Section 15(3)(o) of PERA  The Facts on the Ground  Merit Pay for Educators is Novel  Merit Pay for Educators is Uncomfortable  No Solid Consensus that Merit Pay Works  The MEA is Against Merit Pay  Merit Pay Means More Work and Conflict 30

31  MCL 380.1250(1)  “A school district... shall implement and maintain a method of compensation for its teachers and school administrators that includes job performance and job accomplishments as a significant factor in determining compensation and additional compensation. The assessment of job performance shall incorporate a rigorous, transparent, and fair evaluation system that evaluates a teacher’s or school administrator’s performance at least in part based upon data on student growth as measured by assessments and other objective criteria. 31

32  Merit Pay is a Prohibited Subject of Bargaining  MCL 423.215(3)(o)  Collective bargaining between a public school employer and a bargaining representative of its employees shall not include any of the following subjects: *** Decisions about the development, content, standards, procedures, adoption, and implementation of the method of compensation required under section 1250 of the revised school code,..., decisions about how an employee performance evaluation is used to determine performance-based compensation under section 1250 of the revised school code, …, decisions concerning the performance-based compensation of an individual employee, or the impact of those decisions on an individual employee or a bargaining unit 32

33  Required for all Teachers and School Administrators  Vast Majority of Districts are Noncompliant  A Compliant Merit Pay System Requires  JP and JA as Significant Factor in Compensation  Ditto for Additional Compensation  Merit Pay System Should be Aligned with Evaluation System  Merit Pay is Not a Bonus  Merit Pay is Not Consistent with Steps and Lanes 33

34  Merit Pay does not Belong in CBAs  A Comprehensive Merit Pay System Will Cause a Dust Up  MEA Attitude  Compensation Remains a MSB  Doing Merit Pay Right Will Improve Education  Improve Student Achievement  Improve Status of Education as Profession 34

35  Stop Automatic Step and Lane Increases  Provide Tools and Training for Success  Teacher Training and Tools  Curriculum Content  Lesson Plans and Lessons Aligned with Curriculum  Common Formative and Summative Assessments of Student Progress  Best Practices for Teachers  Administrator Training and Tools  Insure Building Administrators Provide Teachers with Necessary Training and Tools  Insure Building Administrators Fairly and Properly Evaluate Teacher Effectiveness 35

36  Substantially Increase Starting Salaries  Substantially Decrease Number of Steps  Link Movement to Job Performance and Accomplishments as Measured by Evaluations 36

37  Teachers are Interchangeable  Career Progress = Leaving the Classroom  Time and Credentials = Competence, Excellence  The Best Teacher is Less Valuable than the Worst Administrator  The Juice isn’t Worth the Squeeze 37

38  David Rodgers – Northville  Jason Witt – Troy 38

39 Going Forward… 39

40 Teacher Placement “Any decision made by the public school employer regarding the placement of teachers, or the impact of that decision on an individual employee or the bargaining unit” Section 15(3)(j) 40

41 Teacher Placement  Immediate effect July 19, 2011.  No grandfathering of existing labor contracts.  “Placement” definition: “The assignment of a person to a suitable place (as a job or a class in school).” Webster’s New Collegiate Dictionary (1977) by G. & C. Merriam Co.  Impact bargaining also prohibited.  Does not include placement of school administrators. 41

42 Teacher Placement MERC's Recent Attitude:Broad Definition  Involuntary transfer for disciplinary reasons. "I agree with Respondent that §15(3)(j) of PERA makes all decisions over teacher placement, including a decision to transfer a teacher for disciplinary reasons, prohibited subjects of bargaining." Pontiac School District and Pontiac Education Association, MERC Case No. C12 D-070 (March 17, 2013 – ALJ decision)  Involuntary transfer from middle school to elementary school (program reasons). Ann Arbor Public Schools and Ann Arbor Education Association, et al., MERC Case No. C14 G-077 (October 2, 2014) 42

43  Reassignment of speech pathologist from high school to elementary school and posting of high school position as a vacancy. Pontiac School District and Pontiac Education Association, MERC Case No. C11 K-197 (October 16, 2014) Note: MERC rejected union argument that "teacher placement" is limited to only a teacher's initial assignment as a new hire. “We find nothing in these definitions of 'placement' that would limit it to a single or initial assignment.” * * * “Among other things, placement under §15(3)(j) includes reassignment, transfer, or other actions by a public school employer to move an employee to a different school or location.…” Pontiac School Board, supra. 43

44  School District's refusal to follow contract language requiring posting of teaching vacancies and holding of a "bid-bump" meeting. Ionia Pubic Schools, MERC Case No. C12 G-136 (ALJ Peltz decision, March 1, 2013) Judge Peltz wrote: "Section 15(3)(j) of the Act unambiguously gives public school employers broad discretion to make placement decisions without bargaining the decision or the effects thereof and that any limitation on that discretion would be contrary to the plain reading of the statute.” 44

45 Conclusion Where, how, when, or why a teacher ends up in a particular assignment, as well as all procedures attendant thereto each constitute "teacher placement" and thus a prohibited subject of bargaining. 45

46 Discharge/Discipline of Teachers “For public employees whose employment is regulated by 1937 (Ex Sess) PA 4, MCL 38.71 to 38.191, decisions about the development, content, standards, procedures, adoption, and implementation of a policy regarding discharge of discipline of an employee, decisions concerning the discharge or discipline of an individual employee, or the impact of those decisions on an individual employee or the bargaining unit. For public employees whose employment is regulated by 1937 (Ex Sess) PA 4, MCL 38.71 to 38.191, a public school employer shall not adopt, implement, or maintain a policy for discharge or discipline of an employee that includes a standard for discharge or discipline that is different than the arbitrary and capricious standard provided under section 1 of article IV of 1937 (Ex Sess) PA 4, MCL 38.101” Section 15(3)(m); emphasis added. 46

47  Are We Implementing 15(3)(m) correctly??  Although 15(3)(m) clearly establishes a state-wide uniform disciplinary standard of “arbitrary and capricious” for teachers, it also, equally clearly, labels virtually all aspects of discipline to be prohibited subjects of bargaining. Therefore:  Should our teacher contracts contain the “arbitrary and capricious” wording?  Should we be allowing the contractual grievance procedure to be utilized to challenge any discipline of a teacher? 47

48 Ann Arbor Public Schools and Ann Arbor Education Association, MERC Case No. C14 G-077 (ALJ decision, September 2, 2014) “In addressing the 2011 amendments to Section 15(3) of the PERA, the Commission had held that by adding teacher placement, classroom observations, teacher evaluations and teacher discipline and discharge to the list of prohibited subjects of bargaining, the legislature made public school employees solely responsible for these matters by prohibiting them from being the subjects of contract provisions enforceable through the grievance procedure and eliminating any right of a labor organization to bargain over them (citations omitted). Accordingly, I conclude that the Ann Arbor Education Association had no ability to file a grievance over … the school district’s decision to terminate [teacher’s] employment (emphasis supplied)” 48


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