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Senate Bill 575 and Changes to the Collective Bargaining Law

Senate Bill 575 and Changes to the Collective Bargaining Law. Michelle L. Cooper Bose McKinney & Evans LLP mcooper@boselaw.com 317-684-5223. Legal Bargaining Framework for Collective Bargaining. Subjects of Bargaining Prior to SEA 575 3 Categories : 1. Mandatory subjects of bargaining;

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Senate Bill 575 and Changes to the Collective Bargaining Law

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  1. Senate Bill 575 and Changes to the Collective Bargaining Law • Michelle L. Cooper • Bose McKinney & Evans LLP • mcooper@boselaw.com • 317-684-5223

  2. Legal Bargaining Framework for Collective Bargaining Subjects of Bargaining Prior to SEA 575 3 Categories: 1. Mandatory subjects of bargaining; 2. Discussable or Non-mandatory subjects of bargaining; and 3. “Grandfathered” subjects of bargaining – eliminated by SEA 575.

  3. New Legal Framework Under SEA 575 Mandatory Subjects of Bargaining a. Salary b. Wages c. Salary and wage-related fringe benefits, including accident, sickness, health, dental, vision, life, disability, and retirement benefits. d. Paid time off Hours was removed as a mandatory subject of bargaining.

  4. New Legal Framework Under SEA 575 Prohibited Subjects of Bargaining The school calendar Teacher dismissal procedures and criteria Restructuring options available under NCLB and PL 221 The ability to offer dual credit classes Any subject that is not specifically identified as a mandatory subject of bargaining Teacher evaluation procedures and criteria Prohibited subjects of bargaining may not be included in a collective bargaining agreement.

  5. SEA 575 Changed the Definition of Deficit Financing • IC 20-29-2-6 – “Deficit Financing” • “Deficit financing” for a budget year means actual expenditures exceeding employer’s current year actual general fund revenue. • Formerly, expenditures exceeding money legally available to the employer.

  6. IC 20-29-6-3: Unlawful Deficit Financing • It is unlawful for the school employer to enter into any agreement that would place the employer in a position of deficit financing due to a reduction in the employer’s actual general fund revenue or an increase in the employer’s expenditures when the expenditures exceed the employer’s current year actual general fund revenue.

  7. Deficit Financing – 2 Parts • IC 20-29-2-6 • actual expenditures exceeding employer’s current year actual general fund revenue. • Expenditures > Actual General Fund Revenue • IC 20-29-6-3 • due to a reduction in the employer’s actual general fund revenue or an increase in the employer’s expenditures when the expenditures exceed the employer’s current year actual general fund revenue. • Reduction in Employer’s Actual General Fund Revenue

  8. What is the Consequence for Deficit Financing? • Any contract that provides for deficit financing is void to that extent; and • Individual teachers’ contracts executed under the contract are void to that extent.

  9. Who Determines Whether School is Engaging in Deficit Financing? • The Mediator? • The Fact-Finder? • The IEERB? • The Court? • NOTE: IEERB used to be an executive agency that reported to the Governor’s Office. It is now an agency under the umbrella of the Indiana Department of Education.

  10. IC 20-29-4-1: Rights of School Employees • School employees may: • Form, join, or assist school employee organizations. • Participate in collective bargaining through representatives of their own choosing. • Engage in activities individually or in concert; • To establish, maintain, or improve salaries, wages, and salary and wage-related fringe benefits and other matters set forth in IC 20-29-6-4 (mandatory subjects of bargaining) and IC 20-29-6-5 (arbitration provisions). • Removes hours as a mandatory subject of bargaining. Hours is now a mandatory subject of discussion.

  11. IC 20-28-6-2: Regular Teacher’s Contract • A contract entered into by a teacher and a school corporation must: •         (1) be in writing;        (2) be signed by both parties; and        (3) contain the: •             (A) beginning date of the school term as determined annually by the school corporation; •             (B) number of days in the school term as determined annually by the school corporation; •             (C) total salary to be paid to the teacher during the school year; and •             (D) number of salary payments to be made to the teacher during the school year; and • (E) the number of hours per day the teacher is expected to work, as discussed pursuant to IC 20-29-6-7.

  12. IC 20-29-4-3 and IC 20-29-6-11: Responsibilities of School Employers • School Employer Cannot Bargain Changes to the Statutory Dismissal Process • Repeals IC 20-29-6-11, which allowed the school employer and the exclusive representative to bargain changes to the statutory grounds and procedures for contract cancellation and nonrenewal. • Precludes school employers from bargaining exceptions to the state suspension and discharge procedures. • Precludes having arbitrator review discharge decisions.

  13. PL 217 and Committee Appointments • Under the old law, the exclusive representative had the right to appoint all teacher members of committees that make recommendations on mandatory subjects of discussion. • 2. This practice usually precluded any teacher who was a member of the exclusive representative from serving on a Section 5 committee.

  14. SEA 575 and Committee Appointments(New Language) • The percentage of teachers appointed by the exclusive representative to serve on statutory or locally created district wide committees may not exceed the percentage of teachers in the school corporation who are members of the exclusive representative. • 2. The percentage applies to the number of teacher positions on a committee and not to the total number of positions on the committee. • 3. This provision also applies to statutory or locally created school wide committees. • 4. This section does not apply to the bargaining team for the exclusive representative.

  15. IC 20-29-5-7: Committee Appointments(New Language) A committee created under this section may not address mandatory subjects of bargaining. A school employer’s appointment of a teacher to a committee under this section is not an unfair labor practice as it relates to the appointment of teacher committee members. 7. The local president must provide the Superintendent with lists of exclusive representative members in each school and for the entire school corporation by September 15 of each school year.

  16. Example • Total Number of Teacher Members of Exclusive Representative • Total Number of Teachers Employed by School Corporation • = % of teachers exclusive representative appoints to the committee. • QUERY: Is this calculation done on a building-by-building basis or on a corporation-basis? • This percentage applies only to the number of teacher members on the committee and not to the total number of people on the committee. Who picks the committee? Who determines the number of people on the committee?

  17. IC 20-29-6-1: Duty to Bargain Collectively • A school employer may only enter into a collective bargaining agreement including the mandatory subjects of collective bargaining. • 2. Former definition was broader to allow bargaining on any of the matters which the parties bargained collectively in the past. Many contracts included mandatory subjects of discussion in the collective bargaining agreement.

  18. IC 20-29-6-2: Contracts • Any contract may not include provisions that conflict with: • Any right or benefit under state or federal law. • Any school employee rights set forth in IC 20-29-4-1 and IC 20-29-4-2. • Any school employer rights set forth in IC 20-29-4-3.

  19. IC 20-29-6-2: Contracts • Any contract may not include provisions that conflict with: • This amendment struck the words “entered into this chapter”. • QUERY: Does this language extend to other employee contracts? • QUERY: Does this section apply to Memos of Understanding? Are MOUs now limited to Section 4 items?

  20. IC 20-29-6-2: Contracts • Any contract may not include provisions that conflict with: • 4. NCLB/PL 221: Restructuring options available to a school employer under federal or state statutes, regulations, or rules because of the failure of the school corporation or school to meet federal or state accountability standards. • 5. Dual Credit Classes: A school corporation’s ability to contract, partner or operate jointly with an educational entity that provides postsecondary credits to students of the school employer or dual credits from the school employer and the educational entity. • 6. Prohibited Subjects of Bargaining: Prohibited subjects of bargaining listed in Section 4.5 of this chapter may not be included in collective bargaining agreements entered into after June 30, 2011.

  21. IC 20-29-6-4: Subjects of Bargaining • Salary • Wages • Salary and wage-related fringe benefits including accident, sickness, health, dental, vision, life, disability, retirement benefits and paid time off as permitted by IC 20-28-9-11. • Removes Hours as a mandatory subject of bargaining. • Strikes “or other benefits” after health, vision, or dental benefits.

  22. Paid Time Off as Permitted by IC 20-28-9-11 • IC 20-28-9-11 • Absences that are not described in sections 9 and 10 of this chapter may be taken with pay when agreed on by the school employer and the exclusive representative under IC 20-29.

  23. IC 20-28-9-9: Teacher Payments, Sick Days; Death in the Family • Each teacher may be absent from work with pay: • (1) On account of illness or quarantine for 10 days in the first year and 7 days in each succeeding year (referred to as “sick days”) in this chapter. • (2) For a death in the teacher’s immediate family for a period extending not more than 5 days beyond the death.

  24. IC 20-28-9-9: Teacher Payments, Sick Days; Death in the Family • (b) If the teacher does not use all the teacher’s sick days in a school year, the unused days may accumulate up to a total of 90 days. However, each teacher shall be credited with the accumulated days accrued by the teacher on January 1, 1966.

  25. IC 20-28-9-10: Teacher Payments, Accumulation of Sick Days with Another Employer • This section applies when a teacher accumulates at least one (1) sick day and then is employed in another school corporation. • Beginning in the teacher's second year, the teacher's employer shall add up to three (3) sick days each year to the number of sick days to which the teacher is entitled under section 9(a) [IC 20-28-9-9(a)] of this chapter until the accumulated sick days to which the teacher was entitled in the teacher's last employment are exhausted.

  26. IC 20-29-6-4: Mandatory Subjects of Bargaining • Are Unpaid Leaves Salary and Wage-Related Fringe Benefits? 2 Thoughts: • A teacher on unpaid leave is absent without leave, so unpaid leave is not a salary or wage-related fringe benefit. Therefore, unpaid leave is not a mandatory subject of bargaining. • A teacher is on an unpaid leave approved by the Board with the right to return to employment – does that make it a salary and wage-related fringe benefit?

  27. IC 20-29-6-4: Subjects of Bargaining • Salary and wages include the amounts of pay increases available to employees under the salary schedule adopted under 20-28-9-1, but do not include the teacher evaluation procedures and criteria, or any components of the teacher evaluation plan, rubric, or tool. • IC 20-28-9-1 = Merit Pay Statute (which was accidentally repealed)

  28. IC 20-28-9-1: Computation of Minimum Salary • New Definition of Teacher • “Teacher” means a professional person whose position in a school corporation requires certain educational preparation and licensing and whose primary responsibility is the instruction of students. • “Teachers” are subject to the merit pay provisions of this chapter.

  29. IC 20-28-9-1: Computation of Minimum Salary • For purposes of IC 20-28, the term (teacher) includes: • A superintendent. • A principal. • A teacher. • A librarian. • Supervisors and attendance officers were removed from this definition.

  30. 20-28-9-1: Computation of Minimum Salary • Merit Pay Effective Date –The earlier of: • July 1, 2012; or • 2. Upon the expiration of a contract in existence on July 1, 2011 • And governs salary increases for teachers employed by a school corporation on the date this section takes effect.

  31. Question (from FAQ Published by IDOE) • Q: Will current contracts, including those that have been extended through the new biennium, take precedence over the latest legislation on teacher evaluation, compensation, salary determination, and collective bargaining through the end of the next biennium? Or will new legislation trump current contracts, even if extended?

  32. Question (from FAQ Published by IDOE) • A: Although the new legislation cannot trump current contracts, corporations should note that, under IC 20-28-11.5, “a school corporation must submit its staff performance evaluation plan to the department for approval in order to qualify for any grant funding related to this chapter.” For many, if not most school corporations, this grant funding may represent the only new dollars available. Evaluation is also a legal standard for accreditation. • Constitutional Prohibition Against Impairment of Contracts.

  33. How is Merit Pay Bargained? • The weight to be given to the • following factors is bargainable: • Degree/Experience (up to 33%) • Teacher evaluation results • Assignment of instructional leadership roles, including responsibility for conducting teacher evaluations • Academic needs of students in the school corporation.

  34. IC 20-28-9-1: Computation of Minimum Salary • A teacher rated ineffective or improvement necessary under IC 20-28-11.5 may not receive any raise or increment for the following year if the teacher’s employment continues. • 2. The amount that would otherwise be allocated for the salary increases of teachers rated ineffective or improvement necessary shall be allocated to teachers who are rated effective or highly effective.

  35. IC 20-28-9-1: Computation of Minimum Salary • Appeal of Denial of Increase or Increment • A teacher who does not receive a raise or an increment may file a request with the superintendent not later than 5 days after receiving notice that the teacher received a rating of ineffective. • 2. The teacher is entitled to a private conference with the superintendent or designee. • Conference right is limited to teacher who receives rating of ineffective.

  36. IC 20-28-9-1: Computation of Minimum Salary • Not later than January 31, 2012, the IDOE shall publish a model salary schedule that a school corporation may adopt. • Each school corporation shall submit its local salary schedule to the IDOE. The IDOE will publish these schedules on its website. • 20-28-7.5-6: A contract entered into by a teacher and a school employer continues in force on the same terms and for the same wages, unless increased under IC 20-29 for the next term … following the date of the contract’s termination.

  37. IC 20-28-9-1: Computation of Minimum Salary • The IDOE shall report any noncompliance to the State Board of Education, and the State Board of Education shall take appropriate action to ensure compliance with this section. • 4. This chapter may not be construed to require or allow a school corporation to decrease the salary the teacher was earning on or before July 1, 2012, if that decrease would be made solely to conform to the new salary scale.

  38. Other Considerations • Teachers who negatively affect student achievement and growth cannot be rated as effective or highly effective. • A student may not be instructed for 2 consecutive years by 2 consecutive teachers who have been rated ineffective in the prior school year. • By January 31, 2012, the IDOE will define actions that constitute a negative impact on student achievement.

  39. IC 20-28-11.5: Evaluation Options • The State must develop an evaluation tool and define the evaluation criteria by January 31, 2012. • 2. Each School Corporation shall develop and implement a plan beginning with the 2012-2013 school year. • a. School can adopt State plan. • b. School can adopt its own plan, but it must be approved by the State. However, 75% of the teachers must approve the plan before it is submitted to the State. • 3. School’s plan must be approved by State to qualify for grant funding.

  40. IC 20-29-6-4.5: Prohibited Subjects of Bargaining(New Language) • For a contract entered into after June 30, 2011, a school employer may not bargain: • School calendar. • Teacher dismissal procedures and criteria. • 3. Restructuring options under federal and state statues, regulations, or rules because of school’s failure to meet federal or state accountability standards.

  41. IC 20-29-6-4.5: Prohibited Subjects of Bargaining(New Language ) • The ability of the school employer to contract with an educational entity to provide postsecondary credits to students or dual credits from the school employer and the educational entity. • 5. Any subject not expressly listed in Section 4 of this chapter. • A subject that may not be bargained may not be included in an agreement entered into under this article.

  42. IC 20-29-6-4.7: Evaluation and Term of Agreement • Effective upon enactment of the law: • A school employer may not bargain on teacher evaluation procedures and criteria. • A contract entered into by the school employer and the exclusive representative may not extend past the end of the state budget biennium. • QUESTION: Which Biennium?

  43. IC 20-29-6-5: Arbitration Provisions • The section states that a contract may include a grievance procedure but strikes the language stating that the grievance procedure may culminate in final and binding arbitration. • The amendment also strikes the language stating that the binding arbitration has no power to amend, add to, subtract from, or supplement the provisions of the contract.

  44. IC 20-29-6-7: Subjects of Discussion • The amendments strike the language stating that the school employer may bargain subjects of discussion or enter into impasse procedures on mandatory subjects of discussion. • The amendments eliminate “working conditions” as a mandatory subject of discussion. • The amendments add evaluations as a mandatory subject of discussion.

  45. IC 20-29-6-7: Subjects of Discussion • The amendments add “safety issues for students and employees in the workplace, except those items required to be confidential by state or federal law” as a mandatory subject of discussion. • The amendments make hours a mandatory subject of discussion. • The amendments also delete the grandfather language protecting items included in 1972-73 agreements that were discussable that became mandatory subjects of bargaining by virtue of their inclusion in the grandfathered collective bargaining agreement.

  46. So just give me the list – what am I required to discuss? • (1) Curriculum development and revision. • (2) Textbook selection. • (3) Teaching methods.    • (4) Hiring, evaluation, promotion, demotion, transfer, assignment, and retention of certificated employees. • (5) Student discipline.    • (6) Expulsion or supervision of students.     • (7) Pupil/teacher ratio.     • (8) Class size or budget appropriations.     • (9) Safety issues for students and employees in the workplace, except those items required to be kept confidential by state or federal law.     • (10) Hours.

  47. What if the Administration does not agree with the teachers’ input during discussion? • The obligation to discuss does not require either party to enter into a contract, agree to a proposal, or make a concession related to the mandatory discussable items. A failure to reach an agreement on a matter of discussion does not allow the use of any part of the impasse procedure under IC 20-29-8.

  48. May the Administration confer with others regarding a mandatory discussable? • YES. The obligation to bargain collectively or discuss a matter does not prevent the school employer or superintendent from conferring with a citizen, taxpayer, student, school employee, or other person considering the operation of the schools and the school corporation. • Likewise, a school employee is not prevented from petitioning the school employer, governing body, or superintendent for a redress of the employee's grievances, either individually or through the exclusive representative • IC 20-29-6-9

  49. IC 20-29-6-12: Commencement of Collective Bargaining • Formal collective bargaining between the school corporation and the exclusive representative shall not begin before: • August 1 in the first year of the budget biennium; or • 2. August 1 in the second year of the budget biennium if the parties agreed to a one year contract during the first year of the budget biennium or the contract provides for renegotiating certain financial items in the second year of a 2-year contract. • Informal negotiations may be held before August 1.

  50. IC 20-29-6-12.5: Certification of Funding(New Language) • Before August 1 of the first year of the state budget biennium, the department shall provide the parties with an estimate of the general fund revenue available for bargaining in the school corporation from the school funding formula. • 2. Within 30 days after the date of the first ADM count date of the school year in the first year of the state budget biennium, the department shall provide certification of estimated general fund revenue available for bargaining from the school funding formula.

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