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and the like. namely. Council Rock School District (Bucks County). as amended.m. I have been involved in nearly form of dispute resolution either directly contemplated or arguably contemplated under Act 195. as well as Act 88 of 1992. win/win negotiations. Good afternoon. Perkiomen Valley School District (Montgomery County). THE GENERAL ASSEMBLY OF PENNSYLVANIA THE PENNSYLVANIA SENATE EDUCATION COMMITTEE Public Hearing on Teachers’ Strikes in Pennsylvania and Impact on Public Education April 22. Colonial School District (Montgomery County). Downingtown Area School District (Chester County). including fact finding. Souderton Area School District (Montgomery County). West Chester Area School District (Chester County). which is the largest law firm in the Commonwealth of Pennsylvania regularly representing school entities. Hatboro-Horsham School District (Montgomery County). Hearing Room 1 POSITION OF THE PENNSYLVANIA SCHOOL BOARDS ASSOCIATION I. Pottsgrove School District (Montgomery County). Penn-Delco School District (Delaware County). For the past 30 years. INTRODUCTION. super mediation. President of the Pennsylvania School Board Solicitors Association. Upper Merion Area School District (Montgomery County). Sultanik. 2009 – 1:00-4:00 p. Esquire. I am Jeffrey T. just to name a few. I have been practicing education law in the Commonwealth of Pennsylvania and have negotiated hundreds of teachers’ and support staff contracts and have been involved as chief negotiator in school districts where there have been recent work stoppages. mediation. I believe I can speak from direct experience as to both the impact of work stoppages in the 2 . binding arbitration (by agreement). non-binding arbitration. a Pennsylvania School Boards Association Board Member. and Chair of the Education Law Group of Fox Rothschild LLP.

006 50.860 2 37.930 60.653 72.564 14 52.159 15 70.113 6 40.203 76.174 50.677 59.144 11 46. parents.679 45.943 57. 1.122 57.317 56.765 49.349 65.787 58.271 48.171 69.970 49.897 51.970 51.991 60.275 73. PROBLEMS AND SOLUTIONS IN THE CURRENT BARGAINING CONSTRUCT IN THE COMMONWEALTH OF PENNSYLVANIA.816 44.243 46.123 58.787 54.726 8 43.583 52.378 51.561 48.174 53.152 44.740 52.510 54.357 46. II.948 43.856 39.800 41.303 42.306 5 39.221 42. students.736 62. This is often manifested in the manner upon which union leaderships receive strike authorization in the Commonwealth of Pennsylvania (voice vote).757 13 49.156 67.703 53. A.Commonwealth of Pennsylvania.306 40.357 45. 2007-2008 SALARY SCHEDULE Step Bach Bach + 12 Bach + 24 Masters Mast + 12 Mast + 24 1 37.474 54. What appears below is the 2007-2008 salary schedule of a school district in the Commonwealth of Pennsylvania that went on strike for a 16-day period. and school boards in this Commonwealth of Pennsylvania.686 3 38.323 37.357 45.532 9 44.046 43. administrators.146 63.879 65.183 47.543 63.000 40.970 49.919 7 42. Discussion.208 56.363 3 . as well as potential improvements to our current legislative framework to mitigate the impact of a system that is still heavily stacked against the interests of the taxpayers.152 44.815 38.744 42.379 89.765 48.627 66.561 46.583 56.451 86.951 12 48.174 50. The union leadership/negotiating team often has specific pecuniary interests that may be different than a majority of bargaining unit members they represent causing them to take positions that are ultimately not in the best interests of the District and even their own union.765 48.411 61.452 45.338 10 45.837 49.616 55. Problem.432 4 39.561 46.378 51.722 41.948 43.196 61.378 54.131 83.

it is patently obvious that the union had historically negotiated a labor contract that put the most amount of the salary dollars on the maximum step of the salary schedule. This internal union conflict is not always democratically expressed to bargaining unit members. Solution. to fix. Such a situation encourages a shift in union leadership from individuals at the maximum step of the salary schedule to union leadership at earlier steps in the salary schedule (which is what happened in this district). PSBA’s proposed labor relations bill requires that a labor union in which a majority of the labor union members are present only vote to go on strike if a majority. if not impossible.00 to $18. The new union leadership will naturally seek to divert more dollars to the earlier portions of the salary schedule. On its face such a salary schedule is an invitation to union division between the teachers populating the maximum step of the salary schedule and the teachers on the first 14 steps of the salary schedule. This is evidence that the union leadership had historically diverted large amounts of salary settlement dollars to go to where the union leadership was on the salary schedule or where they perceived most of their votes would be to resolve a labor contract. This will permit a more reasoned analysis of the union’s position and 4 .000. The reason why this is obvious is that there is a huge “bump” step between Steps 14 and 15 of the salary schedule. The use of peer pressure and strong arm tactics to have all bargaining unit members support whoever is the then current union leadership causes these extremes in the salary schedule that eventually become expensive.000. If you look at this salary schedule. which happened over time in this particular district.00. The salary schedule speaks volumes about the demographics of the union and the history of bargaining in the union. votes to support the strike. In many situations. which at points approaches $17. the union leadership ultimately votes for improvements in their own salaries on the salary schedule to the detriment of other individuals on the salary schedule. 2. through secret ballot.

Under those circumstances. it would permit a Court of Common Pleas Judge the implied authority/power to strong arm a school board into a contract settlement. Solution. PSBA’s labor relations bill only allows a court of record to act on a Secretary of Education injunction request but shall have no authority to require an employer or a union to bargain or meet and discuss wages or other terms and conditions of employment. The court would only have the ministerial authority to issue a labor injunction if warranted under the law. B. Problem. A school district only has authority to utilize individuals to work during a strike who have not worked for the school entity in the past twelve months under current Section 11-1172-A of Act 88 of 1992 after a non-binding arbitration panel award is rejected by either the school board or the 5 . C. 1. when such Court of Common Pleas Judge has little or no experience in teacher contract compensation issues or collective bargaining under the Public Employe Relations Act or Act 88 of 1992.” (See Section 1113-A of the proposed PSBA Labor Relations bill attached as Exhibit “A”). Such intervention can only complicate a process and creates the real potential for a third party non-taxpayer to dictate to the taxpaying community what their costs for education will be over the term of a successor collective bargaining agreement.would give those bargaining unit members who would often be disenfranchised by louder union leadership voice to control their own destiny and to avoid a situation where the union leadership is “out for themselves. Section 1161-A of Act 88 of 1992 allows the Secretary of Education to initiate in the Court of Common Pleas injunctive proceedings if the school entity cannot provide the period of instruction required under Section 1501 of the Public School Code by June 30. Problem.

It also covers non-professional employees’ strikes. Permitting school entities to hire “strike breakers” during the first strike who have not worked with the district in the past twelve months helps “level the playing field” and also enables a school entity to meet its constitutional obligations. 1. Though it is true that the number of student days must meet the statutory minimums even during the course of a work stoppage. their Section 504 plans. School entities in the Commonwealth of Pennsylvania are also required to comply with the provisions of the federal Individuals with Disabilities Education Act (IDEA). Having qualified strike breakers during the course of a labor stoppage would permit school districts to comply with their IEPs (Individualized Education Plans) for their exceptional students. the interruption in the educational programs and having teachers “work to rule” disrupts the educational continuity to such an extent that a thorough and efficient education is often impossible. School districts are also required to abide by the provisions of the No Child Left Behind Act. School districts have an obligation to provide through the Pennsylvania Constitution a thorough and efficient education. This would be typically during the second strike permitted under Act 88 of 1992. as well as fulfill the goals and objectives of the No Child Left Behind Act. Act 88 of 1992 does not only cover professional employees’ strikes. The disruption in the educational program caused by a work stoppage substantively interferes with these federal laws. Discussion. This language is highly problematic for the following reasons: a. the teacher aides or teacher 6 . b. for example. c. as well as Pennsylvania regulations implementing the same.teachers’ union (following a work stoppage) or when a legal strike will prevent the completion of the period of instruction required by Section 1501 by the later of June 15 or the last day of the school district’s scheduled school year. If.

Unlike what is permitted under the National Labor Relations Act. Problem. a district may not ultimately close school. In Philadelphia Housing Authority v. Solution. hours. 620 A. As the Court has stated: “It would not serve the legislature’s declared goal of promoting orderly and constructive relationships between public employers and their employees through good faith collective bargaining to allow a public employer to implement its final offer when the employees and the union have not disrupted 7 . Accordingly. as well as due process hearings. D. through court interpretation. does not permit a public employer to unilaterally implement its last best offer upon reaching impasse with a labor union. and terms and conditions of employment proposed in prior negotiations. Section 11-1172-A of the PSBA proposed labor relations bill permits an employer to hire employees for the duration of a strike by its employees and does not only limit it to those employees who had been actively employed by the school entity at any time during the period of the past twelve (12) months. there can never be strike breakers brought in during the course of a paraprofessional work stoppage. the Pennsylvania Public Employe Relations Act. 1992). Cmwlth. under the current law. 2. the Pennsylvania Commonwealth Court articulated the well-established law in the Commonwealth of Pennsylvania that a public employer violates its good faith bargaining obligation by declaring an impasse in negotiations and implementing new wages. This has a significant implication on the district’s ability to comply with IDEA because paraprofessionals are often the backbone in the implementation of the federally and state-mandated IEPs. A district’s failure to provide the required education pursuant to IDEA can result in a district being liable for compensatory education claims.2d 594 (Pa. PLRB.paraprofessionals in a school district engage in a work stoppage.

What the Commonwealth Court did not understand is that a prolonged period of no labor contract is often as damaging as a work stoppage. 473 Pa. Bargaining unit members who happen to be on the maximum step of the salary schedule and do not normally get the benefit of step movement usually receive the least percentage increase of members covered under the collective bargaining agreement. they very frequently are unwilling to absorb increased healthcare costs because they would often be in a negative income situation if they would accept the board’s proposal. the continuation of public services by striking. PLRB. the districts often request higher premium shares from bargaining unit members.” Philadelphia Housing Authority v.2d. 372 A. even though the premium share increase is coupled with a salary increase. If there is a large number of bargaining unit members on the maximum step of the salary schedule. and the like. work beyond the regular work day. This causes the union to engage in extended periods of living under the status quo contract. act as student advisors. 1069 (1977). 8 . school dances. coach sports. “Working to rule” on a labor contract is the situation where teachers only work to the literal contractual language and refuse to volunteer to chaperone field trips. Unilateral action by an employer during a period of no contract while employees continue to work serves to polarize the process and would encourage strikes by employees who otherwise may wish to continue working under the terms of the expired agreement while negotiations continue. 101. It is often easier for a labor union to engage in this process (which creates substantive parent and student consternation) insisting that the status quo be maintained following the expiration of a labor contract. If a district is experiencing such growth in its health benefit costs. Joseph’s Hospital v. since the individuals on the maximum step of the salary schedule perceive that they are better off with the status quo than the changes asserted by the employer. 620 A. citing St. PLRB. at 600.2d. This is particularly problematic if a district is experiencing double digit growth in the costs of its healthcare program. Bargaining unit members may be better off in just maintaining the status quo than accepting the board’s increased premium share.

they could lose something in the neighborhood of a 7% salary increase during the year in which they engage in a work stoppage. and a school district is ultimately forced to bargain with the union about what days would be made up in the event of a work stoppage. it would be possible for the days not to be made up. Solution. 1. See Section 1128-A of PSBA’s proposed labor relations bill. The problem is that the teachers’ unions will then file grievances under the collective bargaining agreement. which theoretically require the 195 work days. 9 . There is no reason why the Public Employe Relations Act should not be amended to allow an employer to implement its final offer. the teachers could theoretically lose 15 work days if they are not student calendar days and are professional development days that the district would cancel in the event of a work stoppage. Accordingly. Most teachers’ contracts specify the number of work days that the teachers’ union must work during the course of a school year. This is particularly significant. It has also created a situation where districts that take an aggressive stance in negotiations put all of their professional days at the end of the work calendar so that if there were to be a work stoppage. The ability to implement a final offer is something that has been in place in the private sector for many years under the National Labor Relations Act. In many counties in Pennsylvania. many teachers’ contracts have extended beyond a 180-day work year. since in many school districts. E. if teachers could theoretically lose 15 days of pay. As the result of negotiations efforts over the years and the need for further professional development. If a teachers’ union were to engage in a work stoppage in a school district that has 195 work days. the length of the contract work year for teachers may be as high as 194 or 195 work days. a day of pay is often equivalent to a half of a percent in salary increase. Problem.

Solution. teachers’ unions have historically been able to not lose any pay during the course of the work stoppage and have attempted to force districts. to make up all of the lost days as the result of the work stoppage. there needs to be a true penalty imposed upon a teachers’ union that decides to engage in a work stoppage. Accordingly. Unlike private sector days where the days are not ever made up. 1. through either the collective bargaining process or through the grievance process. There absolutely needs to be financial implications for a teachers’ union engaging in a work stoppage. On the other hand. a financial penalty should be imposed. Section 1133 of the proposed labor relations bill does deal with the imposition of financial penalties on teachers for each day of strike that interrupts the delivery of scheduled educational services. It is not unusual for a business agent or a PSEA UniServ Representative to recommend a course of action that is not always in the best interest of the local. F. Further. which might further the interests of the union that extends beyond the local itself. unions that elect to engage in a strike know that they are going to sustain a substantive financial penalty as the result of engaging in the process. but on the labor union that recommends and implements the work stoppage. 1. In order to have a balance in the negotiations process. Because the employee organization has a stake in the outcome of the negotiations that may extend beyond the area of the local. incites a strike. or participates in strike should be prohibited from using a union dues checkoff privilege for the remainder 10 . Problem. Section 1133(h) of the proposed PSBA labor relations bill does impose a penalty not only on the individual bargaining unit member. Solution. an employee organization that strikes. Currently. the association that represents the local bears no direct financial penalty for recommending a work stoppage.

Section 20. and the union has to recognize that there will be consequences for engaging in a work stoppage. Discussion. of the then Pennsylvania Constitution. or a fact finder. should not be permitted to impose his/her brand of industrial justice on a particular school entity and determine. of the Pennsylvania Constitution. the Erie Firefighters Union sued the City of Erie in an attempt to compel city council to implement the decision of an arbitration panel in a contract dispute. Section 31. that has no vested interest in a particular jurisdiction. Historically. but is. such as an arbitration panel. G. 178 A. which stated: 11 . A union that recommends a foolish work stoppage (that is often the case) must bear the consequences of dealing with income flow issues when these types of decisions are made.of that calendar year and the subsequent three calendar years. Problem. Article III. only permits police and firefighters to have their contract disputes settled through compulsory binding arbitration. in my opinion and in the opinion of the Pennsylvania School Boards Association and other practitioners in the field. Our Pennsylvania Supreme Court in Erie Firefighters v.2d 691 (1962). 1. Gardner. There should be a prohibition for a school entity to collect dues on behalf of the union. 406 Pa. a judge. The Pennsylvania Supreme Court interpreted Article I. in large part. The Pennsylvania State Legislature is not permitted to make a law that calls for teacher compulsory binding arbitration. the Legislature has considered dealing with the alleged “strike” problem by recommending the consideration of binding arbitration. what the taxes on the community will be over the duration of the labor contract. Binding arbitration is not only an extreme remedy that cannot be imposed upon school entities. 395. A third party. violative of the Pennsylvania Constitution.

was created. there are serious questions as to whether we should be delegating these types of decisions to outsiders who have no vested interest in the outcome of the proceedings. if the Commonwealth is the employer. or effects. on November 7. or interfere with any municipal improvement. in order to implement Act 111 that covers police and firefighters’ binding arbitration. with respect to matters which require legislative action. selected and acting in accordance with law for the adjustment or settlement of grievances or disputes or for collective bargaining between policemen and firemen and their public employers shall be binding upon all parties and shall constitute a mandate to the head of the political subdivision on which the employer or to the appropriate officer of the Commonwealth. or to levy taxes or perform any municipal function whatsoever. property. money. Beyond the constitutionality. the General Assembly may enact laws which provide that the findings of panels or commissions. Section 20. with respect to matters which can be remedied by administrative action. 12 .” The bottom line is that such a proposal would be unconstitutional. and to the law making body of such political subdivision or of the Commonwealth. supervise.” The Pennsylvania Supreme Court ultimately ruled that the action of the arbitration panel would be an unauthorized delegation of municipal power. As the result of the Erie Firefighters case. whether held in trust or otherwise. 1967. private corporation. any power to make. A new Article III. or association. which incorporated the language of former Article I. and added the following: “Notwithstanding the foregoing limitation or any other provision of the Constitution. the Pennsylvania State Constitution was amended. Section 31.“The General Assembly shall not delegate to any special commission. other than attempting to make both parties happy so that they would be selected again as a neutral arbitrator. to take the action necessary to carry out such findings.

O. Solution.397. Respectfully submitted. Box 3001 Blue Bell.com 13 .0450 – fax jsultanik@foxrothschild. Sultanik. Education Law Group Fox Rothschild LLP 10 Sentry Parkway.0714 – cell 610. Do not consider a binding arbitration response.2. By:_______________________________________ Jeffrey T. PA 19422-3001 610.397. Suite 200 P.582. Esquire Chair.6515 – direct 215.