Legislation to Establish a Public School Labor Relations Board

1
Legislation to Establish a Public School Labor
Relations Board Binding Arbitration Background
Analysis

• John R. Woolums, Esq.
• Director of Governmental Relations
• Maryland Association of Boards of Education
• 621 Ridgely Avenue, Suite 300
• Annapolis, Maryland 21401
• [phone] www.mabe.org

2
Introduction Overview

• Background on collective bargaining law in
  Maryland
• Summary of the permissive bargaining bill of
  2002
• Summary of the labor relations board legislation
  introduced in the past 2 legislative sessions and
  anticipated in 2009 and
• Questions Discussion

Maryland Association of Boards of
Education
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Background

• Teachers organized in the late 1960s and
  Maryland adopted the collective bargaining law in
  the Education Article of state statute.
• Key issues
• Mandatory or Illegal subjects of bargaining
• No right to strike
• The impasse process
• The balancing test
• Permissive subject category added
• Both certificated and non-certificated employees
  are organized
• Consistent union efforts to expand the scope of
  bargaining and mandate binding arbitration
  through legislation

Maryland Association of Boards of
Education
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Scope of Bargaining

• Historically, all collective bargaining matters
  were either legal, meaning they must be
  negotiated or illegal, meaning they cannot be
  negotiated.
• Mandatory subjects - salary, wages, hours, and
  other working conditions.
• Illegal subjects - education policy issues
  including curriculum, class size, school
  calendar, and teacher assignment.

Maryland Association of Boards of
Education
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The Balancing Test

• Two-part test applied by the State Board to
  determine whether a subject is illegal
• First, if precluded by statute, the matter is
  illegal.
• Second, if not precluded by statute, the
  balancing test is used to determine whether the
  subject has a greater impact on education policy
  or the administration of the school system than
  on employee working conditions. If so, the matter
  is illegal.
• In 2008, the State Board issued an opinion
  restating the balancing test for the first time
  since the 2002 passage of the permissive
  bargaining legislation (Senate Bill 233).

Maryland Association of Boards of
Education
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The Negotiation Process Today

• General requirement that negotiations are to be
  conducted in good faith.
• No prescribed method of negotiation.
• Disputes may be resolved through the impasse
  process (6-408 6-510, Education Article).
• Only the State Superintendent may declare
  impasse.
• A mediation panel develops recommendations
  mediation costs are shared.
• The mediation panels report is non-binding.
• Final decision authority vested in the local
  board.
• The local boards decision is subject to the
  local governments funding authority.

Maryland Association of Boards of
Education
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State Board Authority Today

• The State Board of Education decides all disputes
  on scope of bargaining and unfair labor
  practices.
• The State Board of Education determines whether
  disputes arising in negotiations are
• Negotiable and subject to the grievance and
  arbitration process set forth in the contract or
• Nonnegotiable and subject to the administrative
  appeals process (local superintendent board).
• The State Board decides appeals from local board
  decisions.
• Binding grievance arbitration awards, if allowed
  in the contract, may only be vacated in circuit
  court, with no State Board appellate role.

Maryland Association of Boards of
Education
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The Livers Decision and Legislation

• In 1992, a State Board decision held that the
  superintendent retains the authority to determine
  cause for the discipline and discharge of
  non-certificated employees and that this is an
  illegal subject for bargaining (Livers v. Charles
  County Board of Education, 6 Op. MSBE 407
  (1992)).
• Legislation has attempted, unsuccessfully, to
  make the just cause standard for the discipline
  and discharge of non-certificated employees a
  mandatory subject for bargaining.

Maryland Association of Boards of
Education
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2002 Permissive Bargaining Law

• In 2002, the General Assembly amended the states
  longstanding collective bargaining law to
• Provide for the negotiation of permissive
  subjects and
• Allow non-certificated employees on the Eastern
  Shore to organize.

Maryland Association of Boards of
Education
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Permissive Subjects of Bargaining

• Following passage of the 2002 legislation
• Local boards and employee organizations may
  negotiate on matters mutually agreed to by both
  parties
• Permissive subjects include those other matters
  not precluded from negotiation by statute and not
  within the exclusive purview of the
  superintendent or local board of education and
• Permissive subjects, not mutually agreed to, may
  not be raised in any impasse mediation.

Maryland Association of Boards of
Education
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Illegal Subjects of Bargaining

• The 2002 law retained the previously decided
  illegal subjects of bargaining
• Any item precluded by statute school calendar,
  maximum class size and
• Any item statutorily within the exclusive
  authority of the superintendent or local board.

Maryland Association of Boards of
Education
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Illegal Subjects

• School calendar
• Employee reclassification
• Class size
• Classroom observation
• Second Class certificates
• Assignment (procedure negotiable)
• Transfer and reassignment (procedure negotiable)
• Tenure determination
• Promotion, transfer, and evaluation of
  non-certificated employees
• Change in step caused by reclassification
• Extra-curricular assignments (coaching decisions)
  

Maryland Association of Boards of
Education
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2002 Law The Livers Issue Revisited

• The 2002 law also attempted to address the Livers
  issue. However, as amended it provides only that
  one of the permissive subjects of bargaining may
  include the negotiation of due process for
  discipline and discharge of non-certificated
  employees.
• In 2005, the State Board interpreted this
  provision to allow negotiation of due process
  procedures, but that negotiation could not divest
  the superintendent of the substantive
  decision-making authority on cause and clarified
  that related grievances may be appealed but not
  go to arbitration.

Maryland Association of Boards of
Education
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Labor Relations Board Legislation

• The proposal to create a separate Labor Relations
  Board to resolve school employee contract
  disputes was originally included in the
  permissive bargaining bill in 2001, but not in
  the 2002 bill as introduced or enacted.
• 2001 legislation did not propose binding
  arbitration (The Labor Relations Board would have
  conducted impasses proceedings).
• A bill to create a separate Labor Relations Board
  was introduced in 2007.
• A bill to create a separate Labor Relations Board
  and mandate binding arbitration was introduced in
  2008.
• Reintroduction of the 2008 bill is anticipated in
  2009.

Maryland Association of Boards of
Education
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New Labor Relations Boards Authority

• The new Labor Relations Board would replace the
  State Board of Education for purposes of
• Adopting rules and regulation for verifying
  employee organization certification and
  elections and
• Supervising elections.
• On petition by either party (school system or
  employee organization) determine
• If a matter is a mandatory, permissive, or
  illegal subject for bargaining and
• Issues concerning bad faith bargaining and
  unfair labor practices.

Maryland Association of Boards of
Education
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New Labor Relations Boards Authority

• The new Labor Relations Board would administer
  and enforce the labor relations provisions of the
  Education Article under Subtitle 4 (Certificated
  Employees, 6-401-411) and Subtitle 5
  (Noncertificated Employees, 6-501-514)
• Adopt and enforce regulations, guidelines and
  policies and
• Conduct hearings, issue subpoenas, and conduct
  investigations.
• The legislation states that a decision of the new
  Board would be final.

Maryland Association of Boards of
Education
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New Labor Relations Boards Composition

• 5 members appointed by the Governor
• 1 representing the public
• 2 chosen from a list submitted by employee
  organizations and
• 2 members of the education or business
  community.
• The term of a member is 6 years, limited to one
  second term.
• The terms will be staggered following the initial
  appointments.
• The Governor may remove a member only for
  incompetence or misconduct.

Maryland Association of Boards of
Education
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Expanding the Scope of Bargaining

• The bill would expand the definition of mandatory
  subjects of bargaining
• ALL MADATORY SUBJECTS OF BARGAINING, INCLUDING
  all matters that relate to salaries, wages,
  hours, and other working conditions.

Maryland Association of Boards of
Education
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Allowing Permissive Subjects to Be Arbitrated and
Become Mandatory

• The bill would retain the permissive subject
  category. However, it would
• Remove the prohibition on raising a permissive
  subject, not agreed to by both parties, in any
  future impasse proceeding. This would allow
  arbitration of permissive subjects and
• Allow unilateral petitions to the new Labor
  Relations Board for determinations on scope of
  bargaining. This would allow the new Board to
  decide an illegal subject is permissive or that a
  permissive subject is mandatory.

Maryland Association of Boards of
Education
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Class Size - No Longer an Illegal Subject for
Bargaining

• The bill would remove the prohibition in current
  law on negotiating the maximum number of
  students assigned to a class.

Maryland Association of Boards of
Education
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Scope of Bargaining for Non-Certificated Employees

• The Livers decision is revisited once again.
• The bill would make discipline and discharge for
  just cause a mandatory subject of bargaining for
  non-certificated employees.

Maryland Association of Boards of
Education
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Binding Grievance Arbitration

• The bill would require that if a contract
  provides for arbitration of certificated employee
  grievances, the contract must provide for binding
  arbitration.
• The agreements may SHALL provide for binding
  arbitration of the grievances arising under the
  agreement that the parties have agreed to be
  subject to arbitration. (6-408(a)(2) as
  proposed to be amended)

Maryland Association of Boards of
Education
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Binding Interest Arbitration

• The bill would repeal the authority of local
  boards of education, and the State Board of
  Education on appeal, to make final determinations
  of matters subject to negotiation.
• The Labor Relations Board would decide labor
  relations and scope of bargaining disputes and
• An arbitrator would decide all disputes arising
  from negotiation of the contract.

Maryland Association of Boards of
Education
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New Mediation, Fact-Finding Binding Arbitration
Procedures

• The bill would replace the non-binding impasse
  mediation procedures with mandatory and
  mediation, fact-finding, and binding arbitration
  by amending the labor relations provisions of the
  Education Article under Subtitle 4 (Certificated
  Employees, 6-408) and Subtitle 5
  (Non-certificated Employees, 6-510).

Maryland Association of Boards of
Education
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New Mediation, Fact-Finding Binding Arbitration
Procedures

• If no collective bargaining agreement is
  finalized after 30 days of negotiation or 45 days
  prior to the county boards budget submission to
  the county governing body, the parties shall
  notify the Labor Relations Board.
• The Labor Relations Board then initiates
  mediation, for a period not to exceed 2 days.
• If no agreement is finalized, notice is given of
  moving to fact-finding.

Maryland Association of Boards of
Education
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New Mediation, Fact-Finding Binding Arbitration
Procedures

• A mediator is selected from the list provided by
  the Labor Relations Board, or per the local
  agreement.
• Mediation costs are split between the parties.
• Fact finding limited to 5 days.
• The fact finders recommendations must be sent to
  parties within 21 days.
• If no resolution is reached within 5 days of
  receiving the fact finders recommendations, the
  report is made public.

Maryland Association of Boards of
Education
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New Mediation, Fact-Finding Binding Arbitration
Procedures

• Fact finding costs are split between the parties.
  
• Either party may then request final and binding
  arbitration.
• Arbitrator selected from the list of 7 from the
  American Arbitration Association or per the
  contract.
• The final offer method shall be used, with
  final best offers submitted in writing.
• Arbitration costs are split between the parties.

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Education
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What is the final offer method?

• The proposed bill would mandate the use of the
  final offer method and that the arbitrator shall
  select one position on each issue as the binding
  award.
• The final offer method of arbitrating contract
  disputes requires the arbitrator to select
  between the final impasse positions of each
  party.
• The final offer method does not allow an
  arbitrator to adopt a compromise between the
  opposing offers on individual items in dispute,
  but requires a choice between the two positions.

Maryland Association of Boards of
Education
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Standard of Review

• The bill is silent on a standard of review for
  the new Boards decisions on scope of bargaining
  or unfair labor practices.
• The bill directs the fact finder to issue
  recommendations after giving due regard to any
  written statement and testimony received from the
  parties.
• The bill would limit the arbitrator to
  considering the unresolved issues that were not
  agreed to in writing by the parties before the
  start of arbitration.

Maryland Association of Boards of
Education
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The Costs of a New Labor Relations Board
Binding Arbitration

• According to the General Assemblys fiscal and
  policy note for House Bill 1518, introduced in
  2008
• Local school expenditures could increase due
  to increased legal costs, possible costs for
  fact-finding and binding arbitration, and
  potential costs resulting from negotiations that
  could include class size.
• The fiscal note estimated a cost to the state of
  250,000 to 350,000 per year to administer the
  new Labor Relations Board.

Maryland Association of Boards of
Education
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New Costs and Who Pays

• The legislation states that negotiated provisions
  and arbitration awards are subject to the law
  governing the fiscal relationship between the
  school system and county government.
• This simply clarifies that local governments are
  not mandated to provide additional funding to
  compensate school systems for the costs of
  complying with the decisions of the Labor
  Relations Board or the arbitrator.
• Therefore, school systems could be obligated
  legally to comply with costly decisions - even
  without additional resources.

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Education
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• Questions
• and
• Discussion

Maryland Association of Boards of
Education