John R. Woolums, Esq. Director of Governmental Relations

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 (410) 841-5414 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

3. 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 Maryland Association of Boards of Education

4. 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

5. 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

6. 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. Maryland Association of Boards of Education

7. 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

8. 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

9. 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. Maryland Association of Boards of Education

10. 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

11. 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

12. 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

13. 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

14. 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

15. 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

16. 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. Maryland Association of Boards of Education

17. 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. Maryland Association of Boards of Education

18. 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

19. 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

20. 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

21. 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

22. 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

23. 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

24. 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

25. 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. Maryland Association of Boards of Education

26. 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. Maryland Association of Boards of Education

27. 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. Maryland Association of Boards of Education

28. 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

29. 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.” Maryland Association of Boards of Education

30. 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. Maryland Association of Boards of Education

31. 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. Maryland Association of Boards of Education

32. Questions and Discussion Maryland Association of Boards of Education