john r. woolums, esq. director of governmental relations

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 Education621 Ridgely Avenue, Suite 300

Annapolis, Maryland 21401(410) 841-5414 www.mabe.org

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

Background

Teachers organized in the late 1960’s 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


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.


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).


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 panel’s report is non-binding. Final decision authority vested in the local board. The local board’s decision is subject to the local

government’s funding authority.


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.


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.


2002 “Permissive” Bargaining Law

In 2002, the General Assembly amended the state’s longstanding collective bargaining law to: Provide for the negotiation of “permissive”

subjects; and Allow non-certificated employees on the

Eastern Shore to organize.


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.


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.


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)


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.


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.


New Labor Relations Board’s 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

New Labor Relations Board’s 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.


New Labor Relations Board’s 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.


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.”


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.


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.”


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.


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)


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.


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).


New Mediation, Fact-Finding & Binding Arbitration Procedures

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 board’s 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.


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 finder’s recommendations must be sent

to parties within 21 days. If no resolution is reached within 5 days of

receiving the fact finder’s recommendations, the report is made public.


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.


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.


Standard of Review

The bill is silent on a standard of review for the new Board’s 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.”


The Costs of a New Labor Relations Board & Binding Arbitration According to the General Assembly’s 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.


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.


Questions

and

Discussion


john r. woolums, esq. director of governmental relations

Documents

local superintendent

education backgroundteachers

local board decisions

state superintendent

local boards decision

collective bargaining

arbitration process

permissive bargaining