|
Education Law
Alert
Impact of
Michigan Race to the Top Legislation on Collective Bargaining
by Barbara A. Ruga
The package of
bills embodying Michigan's Race to the Top (RTTT) legislation has
both an immediate impact on public schools' collective bargaining
obligations and a future impact on those schools to be identified as
the 5% lowest achieving schools. While it is premature to
predict all of the potential implications, this article identifies
those provisions that school negotiators must consider in preparing
for upcoming contract talks.
Mandatory
Subjects of Bargaining
A school
district is required to negotiate, upon request, over mandatory
subjects of bargaining such as wages, hours, and any other terms and
conditions that significantly impact an employee's working
conditions. There are several mandatory subjects of bargaining
impacted by the RTTT legislation signed by the Governor on January 4,
2010.
Performance
Evaluation Systems
The most
immediate impact emanates from new School Code section 1249, created
by Senate Bill 981, which requires each school board to adopt a
"rigorous, transparent and fair" performance evaluation
system appraising administrators and teachers. The requirements
of 1249 are effective immediately.
The phrase
"rigorous, transparent and fair" is not defined within the
new statute, however, each board must adopt the system "...with
the involvement of teachers and administrators." As a practical
matter, this means that the systems will be developed through the
collective bargaining process with teacher and, where applicable,
administrator unions, as a performance evaluation system is a
mandatory subject of bargaining. Although parties to the labor
contract cannot nullify the statutory requirements, to the extent the
criteria is open to interpretation or lacks concrete specificity, the
parties will define the statute through the collective bargaining
process.
Section 1249
states any performance evaluation system that is ultimately adopted
and implemented must:
(a)
Evaluate the teacher's or school administrator's job performance at
least annually while providing timely and constructive
feedback.
(b) Establish clear approaches to measuring student growth and
provides teachers and school administrators with relevant data on
student growth.
(c) Evaluate a teacher's or school administrator's job
performance, using multiple rating categories that take into account
data on student growth as a significant factor. For these
purposes, student growth shall be measured by national, state, or
local assessments and other objective criteria.
(d) Use the evaluations, at a minimum, to inform decisions
regarding all of the following:
(i) The effectiveness of teachers
and school administrators, ensuring that they are given ample
opportunities for improvement.
(ii) Promotion, retention, and development of teachers and
school administrators, including providing relevant coaching,
instruction support, or professional development.
(iii) Whether to grant tenure or full certification, or both, to
teachers and school administrators using rigorous standards and
streamlined, transparent, and fair procedures.
(iv) Remove ineffective tenured and untenured teachers and
school administrators after they have had ample opportunities to
improve, and ensuring that these decisions are made using rigorous
standards and streamlined, transparent, and fair procedures.
Lacking more
specific statutory guidance, boards and unions will flesh out phrases
such as "timely and constructive feedback," "relevant
data on student growth" and "ample opportunities to
improve" at the bargaining table, as well as agree upon the
measures and objective criteria to determine student growth. It
is important for school boards to recall that they are not required
to agree on any provision that they believe is not in the best
interest of the school district. Furthermore, how section 1249
and evolving contract provisions will influence Tenure Commission
decisions in light of the statute's requirement that
"ineffective tenured and untenured teachers and school
administrators" be removed "using rigorous standards and streamlined, transparent and
fair procedures" will be determined on a case by case
basis.
The
requirements of section 1249, unlike the requirements of section 1250
(relating to merit pay), are not deferred until expiration of the
current collective bargaining cycle, except insofar as the new performance
evaluation system may impact merit pay eligibility. As a
practical matter, this means that all school boards, whether or not
their contracts are open for negotiations, are expected to begin
discussions with teachers and administrators, and through their
collective bargaining representatives, where applicable, adopt a
performance evaluation system that satisfies section 1249.
Compensation -
Merit Pay Systems
Another
mandatory subject of bargaining impacted by the RTTT legislation is
merit pay. Section 1250 requires school boards to adopt
compensation systems for administrators and teachers that include job
performance and job accomplishments as a "significant
factor" in determining compensation and additional compensation.
The assessment of "job performance," as used in this
section, must incorporate a rigorous, transparent and fair evaluation
system based "at least in part" by data on student growth
as measured by assessments and other objective criteria. Inasmuch
as compensation systems are a mandatory subject of bargaining,
section 1250's requirements will be determined through the collective
bargaining process.
Section 1250
acknowledges this reality. If a current collective bargaining
agreement prevents compliance with section 1250, then compliance is
not expected until the current contract expires.
Basic
Instructional Supplies
An amendment
to the State Aid Act requires that teachers be provided access to
"basic instructional supplies," a term the MDE will define
via an electronic publication. Although the MDE and the Act
combine to dictate much of the requirements and process for filing a
claim, undoubtedly, demands to bargain will arise from this portion
of the legislation.
Administrator
Certification
School boards
whose administrators are represented by collective bargaining agents
should anticipate demands to bargain the cost of the new and
continuing certification requirements, as well as possible release
time during the school year to attend conferences to achieve such
certification.
Prohibited
Subjects
A prohibited
subject of bargaining is a subject over which the public school
authority has sole authority to act. Further, contract language
relating to a prohibited subject is unenforceable. In Michigan,
prohibited subjects were first added to section 15 of PERA in
1994. The RTTT legislation modifies the 1994 list. The
significance of the modifications is that although a school board may
still unilaterally subcontract non-instructional support services, it
may now only do so after providing the union representing employees
whose services may be subcontracted, an opportunity to bid on an
"equal basis" as other bidders. If an equal
opportunity is not provided, then presumably, the subcontracting of
non-instructional support services cannot be unilaterally decided,
but instead reverts back to a mandatory subject and good faith
bargaining must occur before a final subcontracting decision is
made.
What
constitutes an "equal basis" is not defined within the Act;
most likely, the RFP will be provided to the appropriate collective
bargaining agent and that agent will be given the same opportunities
as other bidders to respond in accordance with the terms of the
RFP. Because the phrase "equal basis" is not defined
within the Act, demands to negotiate what that phrase means should be
anticipated as part of a board's contract negotiations planning and
preparation.
Other
prohibited subjects of bargaining are created by the RTTT
legislation, but are applicable only to schools identified as within
the 5% lowest achieving schools. These schools will have an
additional list of prohibited subjects affecting their relationships
with their teacher unions, depending upon the reform model adopted by
the board or imposed by the School Reform Officer. The School
Reform Officer becomes the public employer as to the bargaining
obligation, if any, applicable to the reform models. Future
articles will address these new prohibited subjects of bargaining and
their implication to such schools.
Permissive
Subjects
In addition to
the above, the RTTT legislation may lead teacher unions to request
bargaining about a number of academic and curriculum areas modified
by the new bills. School boards and their negotiators should
remember that decisions relating to curriculum are generally
permissive subjects of bargaining. Only when the curriculum
decision has a direct effect on the terms and conditions of
employment will the decision become a mandatory subject of
bargaining. Thus, the new requirements relating to compulsory
attendance should not spawn demands to bargain. On the other
hand, the additional options relating to teacher input concerning a
secondary student's personal curriculum, as well as the issue of
teacher input for subject area content expectations, may generate
creative demands to bargain the teacher's rights and
responsibilities.
Conclusion
This analysis
is of necessity based solely on the RTTT legislation and existing
MERC precedents. As experienced school negotiators know, the
real impact of the legislation will be determined by how each school
board addresses the new requirements within their labor
contracts. Clark Hill's Education Practice Group is available
to assist your boards in determining how the RTTT legislation will
impact your contract and enhance your educational programs. If
you have any questions, contact your Clark Hill
attorney. All articles are also posted on the Clark Hill
Website for future reference and can be accessed by visiting www.clarkhill.com.
|
