Section Review

The new Massachusetts law, Chapter 12 of the Acts of 2010, "An Act Relative to the Achievement Gap," effective upon enactment on Jan. 14, 2010, represents a revolutionary restructuring of the public sector collective bargaining and dispute resolution process effective in Massachusetts public schools since 1973 (and in Boston and some other cities, since 1966). The purpose of the new law is to arrest, reverse and upgrade poor student achievement in Massachusetts public schools which are designated as "underperforming."

The following is a look at the new collective bargaining and dispute resolution provisions and the labor relations challenges created for professionals accustomed to operating under the general collective bargaining law, G.L. Ch. 150E ("150E").

Comparison with collective bargaining under bankruptcy or fiscal takeover

We are accustomed to seeing private sector collective bargaining agreements ("CBAs") rewritten to satisfy creditors during a federal bankruptcy process; or provisions of public sector CBAs bent when state law takes fiscal control of a city and turns it over to an outside financial control panel, as took place a few years ago in the City of Springfield. However Chapter 12 is the first Massachusetts law which authorizes a public employer, state official or a receiver to override the provisions of a CBA not in furtherance of financial stability, but rather, in this case, in furtherance of state legislative policy to rapidly upgrade poor student achievement.

Turnaround plan may supersede prior law and may override a CBA

The first event under Chapter 12 is the designation of underperforming schools. Next, a turnaround plan ("TP") must be proposed by the superintendent of schools, approved by the commissioner, and ultimately implemented by the superintendent of schools (not by the principal who previously was in charge of such underperforming school, and not by the school committee.)

The law expressly anchors the power to create a TP for an underperforming school under the laws generally regulating public schools, except that when the provisions of this section or of the turnaround plan TP require otherwise, the provisions of this section or of the TP govern.

Under a TP, the superintendent has the power to alter or modify one or more provisions of an existing CBA and to force the exit of personnel from the underperforming school. This explicit statutory provision supersedes any contrary provision of 150E.

Role of the teachers' union

All the unions representing employees at an underperforming school have roles under Chapter 12. In this guide, the focus is on the teachers' union.

These roles include:

• Participation in a local stakeholder group ("LSG") to provide initial input into the creation of a TP;
• Prior consultation with the superintendent over some, but not all of the mandatory bargaining subjects which may be included in a TP;
• Collective bargaining with the school committee over the terms of a proposed TP which alter an existing CBA;
• After a final TP has been proposed by the superintendent to the commissioner, the right to appeal to change the final TP before it is adopted by the commissioner; and
• The right to engage in future collective bargaining over subsequent modifications of the TP and to process grievances during the period when the final TP is in force.

Local stakeholder group

Before the superintendent creates the TP, he must convene an LSG of up to 13 individuals to make recommendations as to what shall be included in the TP, and must consider their recommendations in the establishment of the TP. The LSG includes:

1. The commissioner or designee;
2. The chair of the school committee or designee;
3. The president of the local teacher's union or designee;
4. A school administrator chosen by the superintendent, who may be the principal, but more than likely will not be the principal if the principal is being blamed in whole or in part for the underperformance;
5. A teacher from the school chosen by the school faculty;
6. A parent from the school chosen by the local parent organization;
7. Representatives of applicable state and local social service, health and child welfare agencies chosen by the superintendent;
8. As appropriate, representatives of state and local workforce development agencies chosen by the superintendent;
9. For elementary schools, a representative of an early education and care provider chosen by the commissioner of the Department of Early Education and Care; and for the middle or high schools, a representative of the higher education community selected by the secretary; and
10. A member of the community appointed by the chief executive of the city or town.

Public recommendations

The recommendations submitted by the LSG to the superintendent are required to be publicly available immediately upon submission.

Unlike collective bargaining sessions which are bilateral and conducted in private, the meetings of the LSG are all multilateral and public. None of the exceptions applicable under the Open Meeting Law apply to meetings of the LSG.

Management rights which may be included in a TP

Section (d) of the law lists the "management rights" which the superintendent may include in a proposed TP after considering the recommendations of the LSG, including:

• Clause (4): Funding incentive salary increases for teachers and administrators in underperforming schools; prior consultation required.
• Clause (5): Expanding the school day or school year or both; prior consultation not required.
• Clause (8): Altering one or more provisions of any CBA; prior consultation not required.
• Clause (9): Altering one or more district policies or practices; prior consultation not required.

No prior collective bargaining; no prior union consultation

Under 150E, an employer is required to commence collective bargaining when it contemplates a change in any mandatory bargaining subject, but before it decides to make such change. The reason is to allow for the maximum union bargaining input before the employer's decision has hardened. Here, however, there is no obligation for collective bargaining before the superintendent issues his recommended TP.

Prior union consultation is a lesser obligation than traditional collective bargaining under 150E in that it does not contemplate negotiation to impasse or access to a statutory impasse resolution procedure. Here, not even prior consultation is required, except under Clause (4).

Timetable for adoption of a final TP

1. Under section (e), within 30 days of receiving LSG recommendations, the superintendent submits a TP to the LSG, the school committee and the commissioner, all of whom may propose modifications to the TP. The superintendent concurrently releases the TP to the public.
2. Within the next 30 days, the LSG, the school committee and the commissioner submit their proposed modifications, to the superintendent, which are made public immediately.
3. Within 30 days after receiving such proposed modifications, the superintendent issues a final TP, with or without any of the proposed modifications.
4. Within 30 days after issuance of the final TP, the school committee or union may appeal to the commissioner regarding one or more components of the TP, including the absence of one or more of the previously proposed modifications.
5. Within 30 days after receiving an appeal, the commissioner issues a final decision on any such appeal. The commissioner may, in consultation with the superintendent, modify the plan based on listed statutory standards, or may deny the appeal.

The collective bargaining process under section (g): Meshing the timing with section (e)

Under section (e), within 30 days of receipt of LSG recommendations, the superintendent is required to issue his proposed TP publicly, and the LSG, the school committee and the commissioner (but not the union) have 30 days to propose modifications to the superintendent's proposed TP.

The language of section (g), "if after considering the recommendations of the group of stakeholders," which triggers the commencement of the bargaining process, is not clearly integrated with the timetable in section (e).

Reading the two sections together, it would appear that the superintendent recommends that the school committee and union commence the collective bargaining process under section (g) at the same time that he releases his proposed TP to the LSG, the school committee and the public. If the combined collective bargaining and dispute resolution process runs its full course, that process would be completed after the superintendent receives proposed modifications from the LSG, school committee and commissioner, but before he issued his final TP.

The superintendent will presumably include the results of the collective bargaining and dispute resolution process in his final TP, but the ability of the LSG to respond to the modified TP prior to issuance would be compromised unless the timetable was further extended.

Section (g) contains no provision requiring the superintendent to modify the originally proposed TP to include in the final TP a CBA reached and ratified under section (g). Likewise, there is no provision requiring the commissioner to accept without modification a final TP proposed by the superintendent which includes such CBA or mandating that the commissioner accept any alteration or modification to the proposed TP. This lack of finality may raise questions concerning the authority of the school committee to bargain in good faith for the school district, where the final authority does not rest with the school committee. See the discussion under "bargaining in good faith" and "ratification by the school district."

Scope of collective bargaining

Under section (g), collective bargaining is triggered by a superintendent's determination that rapid academic achievement of students at an underperforming school can be achieved

"by altering the compensation, hours and working conditions of the administrators, teachers, principal and staff at the school or by altering other provisions of a contract or collective bargaining agreement…."

Under 150E, if a change in past practice or school policy has an impact on conditions of employment, a collective bargaining obligation would apply to such change or the impact of such change, whether or not the policy or practice was referenced in the CBA. Here, under section (g), even though such change in practice or policy is includable in a TP under clause (9) of section (d), it is not clear whether the bargaining obligation under section (g) applies when such policy or practice is not covered under the express provisions of an existing CBA.

Also, it is not clear what the scope of bargaining is under section (g) if the basic CBA has expired; the parties are continuing negotiations for a successor CBA; and there is no agreement between the parties to extend the expired CBA during such negotiations.

The duty to bargain in good faith

Regarding the duty to bargain in good faith, section (g) provides:

"The bargaining shall be conducted in good faith and completed not less than 30 days from the point at which the superintendent requested that the parties begin."

Because of the different bargaining requirements under Chapter 12, good-faith collective bargaining may acquire a different meaning under section (6) than under 150E. Under 150E, the school committee is the public employer and designates a bargaining representative to conduct collective bargaining for the school district. To the extent that the superintendent of schools is involved in the bargaining process, it is as an agent of the school committee.

Here, however, under section (g), although the school committee has retained its traditional responsibility to conduct collective bargaining for the school district, it appears that, except for bargaining over salary increases and other cost items, the school committee is the collective bargaining agent for the superintendent, rather than visa versa.

The superintendent is in charge of the decision to request the school committee and union to bargain. The superintendent is accountable to the commissioner for designing a TP which will be acceptable to the commissioner as likely to succeed in developing rapid student achievement. The superintendent may consult with the commissioner whether or not Chapter 12 expressly requires him to do so.

Under 150E, bargaining in good faith is conducted under baseball rules, with extra innings possible, indeed likely, particularly if the parties reach genuine impasse, and there is no predetermined time when the bargaining must stop. Here, under section (g), the duty to bargain in good faith is defined in relation to a time clock.

The concept of bargaining to impasse has basically been eliminated. Collective bargaining has been reduced to managing the bargaining time clock in the shadows of policy decisions by the superintendent in consultation with the commissioner. When the statutory clock runs out, game over. The main legislative imperative is more to complete the process and try to quickly improve student performance at an underperforming school, rather than to level the playing field between labor and management in determining wages, hours and conditions of employment.

The time clock forces the parties to choose carefully the collective bargaining subjects. Because the commissioner ultimately ends up deciding the outcome, it is more likely than not that the parties will focus their negotiations on resolving issues concerning wages and hours generated by the proposed TP, over which a school committee retains authority, rather than engage in decision bargaining over subjects which Chapter 12 has removed from the authority of the school committee.

Jurisdiction of the state's Division of Labor Relations over the duty to bargain in good faith

Under 150E, the Division of Labor Relations ("DLR") determines whether a school district or a union engages in a prohibited practice by bargaining in bad faith. Thirty-plus years of case law have defined the duty to bargain in good faith over a broad range of subjects, including: unreasonable insistence on the time and place for meeting; taking unilateral action to implement a proposal without having bargained to agreement or impasse; and entering negotiations without authority to bargain. DLR has broad remedial power for a violation by an employer, including restoration of the status quo ante and back pay.

No provision of section (g) removes collective bargaining from the provisions of 150E which are not in conflict with subsection (g). Accordingly, DLR retains statutory jurisdiction to enforce the obligation to bargain in good faith as specified in Chapter 12.

Ratification by the employer school district

In traditional collective bargaining, 150E does not mandate ratification of a CBA, but assumes ratification by the employer as well as the union. Under 150E, a school committee has the power to ratify or not, and if it ratifies, the CBA is binding on the school district. Although section (g) is silent on employer ratification, the time clock governs. Therefore, if a CBA reached under section (g) is conditioned on school committee ratification, it needs to happen within the same timetable as exists for ratification by the bargaining unit members in the school.

Ratification by the bargaining unit members in the school

In traditional collective bargaining under 150E, a settlement of new contract terms affecting only a small percentage of bargaining unit members is subject to ratification by the entire bargaining unit, not just by the sliver of members directly affected.

Additionally, a union constitution and bylaws may mandate ratification by an entire bargaining unit. Here, under section (g), a "yes" vote by employees at the underperforming school would appear to constitute a binding ratification without any vote by teachers covered by that CBA but employed outside of the underperforming school.

The solution may be for the union to hold two ratification votes. The first vote would be by the entire bargaining unit, to determine whether or not there was a union-supported agreement ratifiable under section (g). With a "yes" vote, the members at the school would then vote on ratification. With a "no" vote, there would be no second vote.

Where a union and school committee are able to reach agreement on a CBA, it may serve their mutual interests to finesse the ratification issue by dumping the negotiations into the dispute resolution process, where ratification of a decision is not required by section (g).

Timing of dispute resolution process

Because there are only 10 business days to complete the statutory dispute resolution process, the likelihood is that the parties will try to have the three members of the JRC, including a conciliator, appointed and ready to work before the 30-day bargaining period has expired.

Nature of the process; role of conciliator

This dispute resolution process is correctly described as nonbinding conciliation rather than binding interest arbitration because of the residual power of the superintendent or commissioner to alter any agreement reached between a union and a school committee. However, the process functions more like interest arbitration than traditional mediation or conciliation.

In traditional mediation or conciliation under 150E, the conciliator is not a decision-maker, and if the parties fail to reach agreement, the impasse continues. Here, under section (g), a conciliator has in his toolbox the possibility of voting with or against either party and may use that power to press the parties, just like an interest arbitrator. Pure conciliation depends on the parties being willing to convey their interests privately to the conciliator without fear that such disclosures will be used against them. That dimension is lacking in this hybrid role when the conciliator may also be the pivotal decision-maker.

Public or private dispute resolution process

Under 150E, there are a multitude of prohibited practice cases where the Labor Relations Commission (the predecessor to the DLR) held that it is a prohibited practice for a party to insist to the point of impasse on public collective bargaining sessions.

Section (g) appears to integrate the dispute resolution process into the collective bargaining process. On that basis, a party which insists on conducting the dispute resolution process in public would likely be engaging in bad-faith collective bargaining.

Role of American Arbitration Association (AAA)

Section (g) looks to the AAA to maintain a roster of conciliators "with professional experience in elementary and secondary education." The statute does not state whether such professional experience includes prior service as a teacher or administrator in elementary/secondary education, or school committee member, as well as prior labor relations experience as a labor negotiator, mediator or arbitrator. There is no minimum or maximum number of AAA panelists. Nothing in the statute prevents the parties from requesting to examine the AAA's list of conciliators or from jointly requesting a particular person to be appointed ad hoc to the AAA conciliator panel.

As a practical matter, only a few school districts, mostly urban, are likely to be exposed to collective bargaining in underperforming schools, and when it happens, there will be a continual need for conciliation services. Therefore, the parties in such school districts may wish to jointly explore in advance who might serve as their conciliators and present their names to AAA for inclusion on the AAA conciliator panel.

The dispute resolution process is to proceed "under the rules of the AAA and consistent with this section." There are currently no AAA rules for this process.

Written decision; contents; written opinion

There is no specific requirement in section (g) that the decision be in writing, or in any particular form, or unanimous, or supported by any opinion showing how the statutory factors (the positions of the parties, the designation of the school as underperforming, and the needs of the students) were applied.

At a minimum, the decision should be in writing and should embrace all of the terms of the CBA, which was reached prior to the commencement of the dispute resolution process but which failed ratification. If no CBA was reached prior to the commencement of the dispute resolution process, the written decision should embrace all of the issues upon which agreement was reached, together with a decision on all the issues over which the parties were in disagreement during the prior collective bargaining process but which were "decided" by the joint resolution committee.

There is no statutory language requiring that the decision be accompanied by a written opinion explaining why the decision-makers accepted or rejected any proposal or how the statutory factors were applied in reaching the decision. Because of statutory time-clock restraints, the joint resolution committee may issue the decision within the statutory time limit and postpone the supporting opinion until a later date, or elect to issue just a decision, with no written opinion.

Because a decision by the joint resolution committee functions as a form of CBA or settlement agreement, it should be signed by at least two decision-makers.

Grievance processing, CBA administration and collective bargaining during the life of the TP

Under sections (h) and (i), the superintendent may select an external receiver to run an underperforming school for up to three years under a TP. An external receiver has full operational control over the underperforming school, but the school district remains the employer of record.

The provisions of a CBA, which were not altered by the TP, together with the alterations, agreements and decisions of the joint resolution committee which are incorporated in the final TP, have to be administered. Because the school committee remains the employer even after the management of the underperforming school has been outsourced, the school committee remains responsible for the processing of grievances and other aspects of CBA administration.

Under section (j), the superintendent or external receiver may develop additional components of the TP pursuant to sections (b)-(g). To the extent that such additional components alter one or more provisions of the CBA, such development may trigger a new round of collective bargaining and dispute resolution process.

Under section (k), if the commissioner determines that the underperforming school has failed to meet multiple goals, in the TP, he can require changes in the TP. If those changes require further changes in CBAs, this may trigger a further round of collective bargaining and dispute resolution process.

After a TP expires:

A) School determined to be no longer underperforming: restoration of altered terms of CBA

Under section (l), when a three-year TP expires, the commissioner may determine that an underperforming school has sufficiently improved so that the "underperforming" label may be removed. It is unclear whether the provisions of CBAs which were altered by the TP pop back up automatically, as if the alterations were established with a sunset clause, or whether the expiration of the TP triggers a re-opener on such altered provisions; or both the automatic restoration and the re-opener.

At the very least, before the TP expires, collective bargaining should take place over whether any of the changes which became effective under the TP are intended to remain in force even though the TP will have expired.

B) School remains underperforming: New or modified TP; further alterations of CBA

The commissioner may also determine that the school is still underperforming; in which case the commissioner may renew the TP for up to an additional three years, or may create a new or modified TP, generating another round of collective bargaining/dispute resolution process with respect to any further alterations of CBAs.

C) TP failed: school designated as chronically underperforming

The commissioner may also determine that the TP failed, and designate the school as chronically underperforming. In that case, pursuant to sections (m), (n) and (o), the commissioner is required to convene a LSG and develop a new TP.

The following language in section (m), clause (7) governs collective bargaining over limits, suspensions or changes in CBAs or reductions in compensation and hours proposed by the commissioner: "… (t)he commissioner may require the school committee and any applicable unions to bargain in good faith for 30 days before exercising authority pursuant to this clause."

There is no mention of trying to reach a ratified agreement on the altered CBA or a dispute resolution process.

Section 1K: Underperforming school districts

A school district may be designated by the Board of Elementary and Secondary Education as a chronically underperforming district compared to other school districts. A receiver is appointed to run the school district and to work closely with the commissioner to quickly raise student performance.

The statute follows the same process for district as for an underperforming school: LSG, TP, a 30-day bargaining period, followed by a dispute resolution process including a district representative, a union representative and a conciliator appointed by the AAA. This dispute resolution process is the same as the DRP in an underperforming school, with one exception. In an underperforming school, the decision of the joint resolution committee is effective with only two votes. Here, the decision of the joint resolution committee must be unanimous on the disputed issues; else the commissioner decides them.

Summary and conclusion

By putting collective bargaining in underperforming schools on a time clock and subjecting CBAs to override, the General Court has made it clear that quickly raising student performance and eliminating underperforming schools is its highest priority. It remains to be seen whether the labor management community will rise to this challenge and find a way to use the revised collective bargaining process to be part of the solution.

The Author

Allan W. Drachman practices as a labor arbitrator and mediator. From 2003 to 2006, he served as chairman of the Massachusetts Labor Relations Commission (now called the Division of Labor Relations). He is serving his second year as a member of the MBA's Labor & Employment Section Council.