New Challenges: Managing Labor, Employee and Community Relations

Nancy Hungerford

The Hungerford Law Firm

January 28, 2012

The “Big Picture” -- 2012

• No new resources, reserves are gone, and deep cuts in days and staff have already been made.

• Communities do not back increased salaries and insurance costs – and employees know it – but citizens lack information about bargaining.

• CBAs and state law restrict districts’ ability to make change quickly in compensation, costs.

“The Big Picture,” Continued

• Collective bargaining is short-term, repetitive, and more often ineffective – hence “final offers” and unilateral implementation are more frequent.

• Parent and community “watch-dogs” use complaint processes, threatened litigation to contest district actions (e.g., elections, contracting out, ethics)

• Divided boards and communities challenge superintendents’ skills in collaboration.

• Expectations for results and “reform” remain high.

Roles of the Superintendent

• THE PLANNER: Determine priorities for the long term

• THE MANAGER: Ensure legal compliance, delegate, supervise

• THE CHEERLEADER: Motivate and inspire

• THE PROBLEM-SOLVER: Resolve complaints and disagreements within board and community groups

Collective Bargaining Challenges, 2012

*Start bargaining early – or not? Open *Opening proposals – zero? Or less?

* Bargaining workload increases?

* One-year contract – or reopeners?

* Starting communication early –

with employees and community

* Expect a lengthy process

* Don’t give up language

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Recent Labor Litigation

*Expect ULPs filed or threatened during unresolved bargaining as a tactical move (Tigard, McMinnville, Parkrose, etc.)

*Frequent ULPs, grievances over change in workload, schedule

(Portland, Gresham)

*Pay careful attention to legal requirements for mediation, final offers, unilateral implementation

*Increasing challenges based on “regressive bargaining”

*Charges of retaliation against union activists

*Increasing demands to bargain mid-term

over changes in “status quo”

*Changes in ERB personnel, funding

Communication during Bargaining

• School board, administrators may communicate at any time with any employee BUT (1) may not make a new proposal and (2) may not threaten.

• Union leadership may communicate with all school board members but may not make a new proposal except by going through district’s bargaining team.

• Unions may use district e-mail, mail only as provided by CBA provisions, but be aware of changing past practices.

• Union members may wear buttons, but not post bargaining-related posters in classrooms, halls.

• Boards may discuss bargaining positions in executive session, but may also hold such discussions in open session.

Communication: Best Practices?

With employees:

1. Early info on financial picture, in person

2. Regular info from district on proposals, pace of bargaining

3. Supervisors “in the know”

4. Use electronic communication

5. Short, one-topic messages

With the community:

1. “Transparent” planning

and “choice-making”

2. Board and administrator

training and updates

3. Get the message across

at board meetings

4. Have a cohesive board message

5. Short, one-topic messages

Planning for Change: Legal Requirements

• Check to see if CBA applies; if so, seek waiver or utilize any real “reopener” clause (i.e., reducing prep time guaranteed by CBA, moratorium on tuition reimbursement)

• Where CBA is silent or expired but practice exists, notify union in advance on any mandatory change, bargain on demand through expedited bargaining (i.e., increasing teachers’ student contact time, decreasing teacher work days)

• Before implementing change in permissive subjects, notify union of possible mandatory impacts, complete expedited bargaining before implementation (i.e., new student schedule, new grade reporting system?)

• Use existing communication means to set the stage: present the problem, alternatives

• Do not aim for “buy-in,” but understanding

• Seek input from many constituencies, but beware of “bargaining” directly with members

• “No surprises” for union leadership

• Share information early

• Protect management rights while collaborating

Planning for Change: Best Practices

Communicating with Public: Legal Requirements, Limits

1. Public meetings law(Posting, changing agenda, minutes, etc.)

2. Executive sessions(Advance notice to employees? confidentiality)

3. Public records law(Initial response in “timely” manner, costs, time)

4. Elections law(Impartiality in district-produced materials, no use of employee time to promote election measures)

5. Ethics law (Conflicts of interest, special advantages for employees)

Communications: Special Problems

1. Divided school board

2. “Chronic” e-mailing parent

3. Excessive public records requests

4. Offensive, threatening communicators

S.B. 290: Evaluation Standards & Procedures

To comply with the requirements of S.B. 290:1. Determine if your current evaluation system/ standards meet

all requirements of S.B. 290. If so, no action may be needed.

2. Use consultation process in ORS 342.850(2) as a means for “collaboration” to “customize” the core teaching standards adopted by the State Board of Education. There is no obligation to bargain over the standards. ORS 243.650(7).

3. Review current CBA provisions on evaluation to determine if any change is necessary in next round of bargaining.

4. Avoid language referencing the standards or other aspects of the evaluation procedure in the CBA to limit grievances.

Evaluation: Current PECBA Principles

• Standards for evaluation are permissive matters of bargaining.

• Evaluation procedures are permissive except for “fundamental fairness” procedures (i.e., right to know standards, right to receive a written evaluation, right to discuss evaluation).

• Proposal that “the district will comply with ORS 342.850” is mandatory.

• S.B. 290 did not change PECBA.

Evaluation: Cautions after S.B. 290

• Don’t agree to change CBA to allow “just cause” provision, rather than Fair Dismissal Law, as route for appeal of teacher dismissal.

• Eliminate/avoid any language that limits scope of evaluation, such as “No teacher shall be placed on a plan of assistance based on student test scores.”

• Avoid qualification of standards based on “individual circumstances” of teacher.

• Avoid limitation on “measures of teacher effectiveness,” while allowing “multiple evaluation methods.”

• When it comes to CBA language, “less is best.”

Implementing H.B. 3681

• Involve all stake-holders: board, employees, community in advance

• “Go slow” approach: some choices are long-lasting.

• Consider possible unintended consequences, such as higher cost students.

• Impact on charter school students?

• Impact on existing (mutual) inter-district transfers?

Reduction in Force: Recent Decisions

• Under ORS 342.840, part-time teachers may be assigned between .5 and 1.0 FTE

• Arbitrators have upheld layoff of senior teachers who have less “competence” due to lack of recent teaching at grade level/subject.

• Arbitrators will uphold policies that limit recall to the position held before layoff.

• Arbitrators recognize limited scope of review of evidence under ORS 342.934(7).

Reduction in Force Questions

• How to define “educational attainments” as a standard of “competence”?

• Recall decisions: Can “merit” and “competence” be considered?

• Can a position ever be filled with a new hire if employee on layoff not a “good fit” for opening?

• Must added hours be given to classified employees who have lost hours?

Parting Thoughts:

• Decisions in difficult times, when no easy or “right” decision exists, are a real test of leadership.

• Model respect and civility at all times.

• Pursue collaboration, but accept reality.

• Communicate continually, not just during crisis.

More Questions?

Contact Nancy at:Nancy@Hungerfordlaw.com503-781-3458