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A closer look at the District's legal argument to the Pa. Supreme Court

By Paul Socolar on Mar 24, 2014 09:46 PM

School District lawyers, in their Monday petition to the state Supreme Court, argue that by law they do not have to negotiate with the teachers' union on such issues as hiring practices, layoffs, prep time, and contracting out.

The state takeover law exempts these "non-mandatory" areas from collective bargaining, the lawyers say. They ask the court to affirm that the District can unilaterally implement new rules and practices in those areas, even while continuing to bargain with the Philadelphia Federation of Teachers on other contract issues.

The PFT plans to fight this argument in court.

The District petition does not claim the authority to impose new terms on "mandatory" subjects of bargaining, which include wages, hours, and working conditions. 

The petition to the court concludes by making these points:

WHEREFORE plaintiffs the  School Reform Commission and the School District of Philadelphia respectfully request the Court to grant a declaratory judgment in their favor holding:

a) that they have the right - while bargaining with the PFT toward a new agreement following the expiration of the old one - to unilaterally implement reforms to the work rules and practices above regarding staffing patterns and assignments, the order and timing of layoffs, the order of recalls from layoff status, the uses of teacher preparation time, and subcontracting;

b) that this right extends to all the bargaining subjects listed in 24 P.S. § 6-696(k)(2) [the state takeover statute], including but not limited to subcontracting, decisions related to reductions in force, staffing patterns and assignments, class schedules, the academic calendar, places of instruction, pupil assessment and teacher preparation time;

c) that this right exists despite the general duty to maintain the status quo as to mandatory topics of bargaining;

In other words, the District is looking for the court to affirm its authority to put in place new work rules in many areas, without union interference.

It wants the court to uphold three actions that it has already taken this school year that are counter to rules in the expired teachers' contract and have been challenged by the PFT in grievances:

  • In recalling nearly 200 counselors from layoffs last year, the District did not follow seniority rules.
  • After layoffs, the District was out of compliance with contract provisions requiring one counselor in every school and a librarian or library assistant in every school with more than 1,000 students.
  • In the fall "leveling" process, when teachers are reassigned to reflect school enrollment shifts, the District did not always transfer out the least senior staff member, and the District has ignored a mid-October contractual deadline, intending to conduct leveling at different times during the year.

The District petition cites additional changes it wants to make to work rules for the 2014-15 school year:

Teacher assignment: To not follow strict seniority in transferring teachers out of schools and to use a site-based selection process for all new teacher hires at schools, rather than a mix of seniority and site selection.

Layoffs: To do away with a June 30 deadline for layoffs, as well as requirements that layoffs follow seniority order.

Recalls: To free the District from following seniority order if staff are recalled from layoffs.

Teacher preparation time: To authorize principals to require teacher participation in professional development and instructional improvement activities during teachers' prep periods, without compensation.

Subcontracting: To subcontract the provision of substitute teaching services and to establish District authority to subcontract other unspecified educational services. 

District lawyers cite case law to justify their argument that they can make changes in areas deemed non-mandatory. But they acknowledge one "inexplicably contrary" Commonwealth Court ruling involving Coatesville schools that found that a public employer is forbidden from making changes to non-mandatory areas in the period between collective bargaining agreements when a contract has expired. They ask the Supreme Court for a ruling to clarify this issue.

Another key issue the District's petition had to address is the argument that Pennsylvania's Supreme Court has immediate jurisdiction in this matter. District lawyers cite a provision in the state takeover law of 1998, known as Act 46, giving the Supreme Court "exclusive jurisdiction" over collective bargaining issues arising under the law. 

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Comments (45)

Submitted by center65 (not verified) on March 25, 2014 9:55 am
what is going on with the SDP's refusal to give step increases or educational promotions? The union's inaction on that front is beginning to alienate younger teachers
Submitted by Anonymous (not verified) on March 25, 2014 11:06 am
Yep. Exactly.
Submitted by Anonymous (not verified) on March 25, 2014 9:24 pm
We got off easy. I was expecting wage cuts and benefit contributions. This is a HUGE win for us that they are backing off on those other things.
Submitted by Anonymous (not verified) on March 25, 2014 10:56 pm
Who Says They're Backing Off? Wage Cuts And Benefits Contribution Are A Foregone Conclusion.
Submitted by Anonymous (not verified) on March 26, 2014 12:58 am
How, they just basically admitted they don't have the right? This will drag out for several years like Neshaminy. Unless they go broke by the end of the year.
Submitted by Anonymous (not verified) on March 26, 2014 1:32 pm
They Admitted No Such Thing. They Are Asking For Clarification On Work Rules And Seniority And Are Very Tactfully Avoiding The Issue Of Wages. As Green Said He Fully Plans To Implement Wage Cuts If He Can't Get An Agreement From The PFT. Then The Onus Is On The PFT To Take Them To Court.
Submitted by Anonymous (not verified) on March 25, 2014 3:10 pm
The school code was suspended...
Submitted by Anonymous (not verified) on March 25, 2014 5:19 pm
It is not just alienating young teachers. Some of us were making retirement plans based on educational promotions that were acknowledged but not received. Bitter.
Submitted by Anonymous (not verified) on March 30, 2014 10:32 am
There were no Step Increases or Educational credit increases this year because of the stalemate in negotiations. Under PA, Labor Law, once a contract expires and there is no agreement on a new one, the negotiations enter what is called a "Status Quo" environment. Status Quo means that the conditions of the old contract are extended indefinitely until either a new agreement is reached or one side walks away from the negotiating table. So once our contract expired back on August 31st everything became frozen at that point, everyone remains where they were (on the pay scale) as of August 31st. Status Quo may have kept you from receiving your Step and Education increases for this year, BUT it also prevented the SRC from cutting your salary and reducing your benefits as well as we continue to negotiate. The SRC decided to go to the Supreme Court last week to see if they are able to just impose working conditions on us, under the Act 46 legislation
Submitted by Rich Migliore (not verified) on March 30, 2014 10:55 am
That is known as the "status quo ante" and I hope the Pennsylvania Supreme Court reiterates that concept. That concept reflects years of judicial wisdom, and to abandon it, would give the School District license to bargain in bad faith. The district's contract demands are misplaced and counter productive to the best interests of students who are well served by a high quality "profession of education." Because of the SRC's actions, they are sending a clear message that the District is and wants to be a lawless entity which follows no rules. That will only drive many of our best teachers out of the system and warn good teachers from outside, not to work in Philly. We need 21st century leadership. Not 18th century autocracy.
Submitted by Anonymous (not verified) on March 25, 2014 11:33 pm
I think we will all get what's owed to us like the teachers in New Orleans.
Submitted by Anonymous (not verified) on March 26, 2014 6:01 pm
Wait a minute. If I'm working towards my +30 right now, I'm actually throwing my money away as far as a salary increase goes? If so, when did this go into effect? How did I miss this?
Submitted by Anonymous (not verified) on March 25, 2014 10:47 am
Thank you for explaining all of this.
Submitted by Anonymous (not verified) on March 25, 2014 10:45 am
Im pretty sure you overlooked class size too.
Submitted by Anonymous (not verified) on March 25, 2014 10:01 am
"Subcontracting: To subcontract the provision of substitute teaching services and to establish District authority to subcontract other unspecified educational services" Paul, What does "unspecified services" refer to? If the services are unspecified, how would the courts know how to respond?
Submitted by Annonymous (not verified) on March 25, 2014 11:20 am
I assume "subcontracting" is following the charter model - food services, nurses, substitutes, etc. This is obviously a slippery slope and another attempt to privatize / "de-unionize" the workforce.
Submitted by Paul Socolar on March 25, 2014 5:18 pm

"Unspecified" is my word, not theirs. The District petition specifically mention the intent to contract out provision of substitute teacher services and then says that the District cannot be required to bargain over the contracting out of any educational services.

Submitted by Stewart (not verified) on March 25, 2014 9:38 pm
Which can, of course, be construed in the future to include the core "educational service": teaching. The SDP is literally asking for the right to entirely ignore the union and any contract provision (existing or future) and contract out any job that it wishes. This is the actual goal, because then they can convert all teachers to at will employees, preferably not even working for the district itself so that they can be insulated from any repercussions for actions taken against them, no matter how arbitrary or unsupportable. On a related note, what the district is proposing is another in the long series of "contracting out" ideas that don't and have never made sense. How exactly is the district going to save money by this process when they'll not only have to pay for the service anyway but also pay for the profit of the corporation that provides it once it's contracted out? The only way is to cut costs by cutting compensation for those who actually provide the service, the employees who once worked for the district under a fair contract. In the case of substitute teachers, that's already a wage barely above the (current) minimum ($18, 720/year, assuming they work all 180 school days and, of course, not including benefits.) That's where this all is headed and, if the district and the "reformers" have their way, appointed teachers will soon be following them into poverty wages. It's no surprise that this is coming from Hite, either, since he's a product of the Broad Superintendents (unaccredited) "Academy" that teaches exactly this approach.
Submitted by Gtown_Teach (not verified) on March 25, 2014 10:09 am
I think it's time for the PFT to challenge the legitimacy of act 46 in court. Jerry, take that jawn to court. Fight it down. If the SRC is rejected in superior court, the whole house of cards will fall.
Submitted by Anonymous (not verified) on March 25, 2014 11:06 am
At least they will let us keep our 30 minute lunch.
Submitted by Anonymous (not verified) on March 25, 2014 12:59 pm
If seniority is gone, will principals be strong armed (forced?) to cut teachers who make the most money?
Submitted by Anonymous (not verified) on March 25, 2014 2:09 pm
That is the point!
Submitted by Anonymous (not verified) on March 25, 2014 8:57 pm
Actually that would be illegal under federal law already. A little difficult to prove in private sector, but easier if the main determinant of salary is longevity.
Submitted by Anonymous (not verified) on March 28, 2014 1:44 am
All they have to do is declare you "unsatisfactory" and you can be toast. Last year 3 of the senior teachers at my school received their first ever "unsatisfactory" rating. That's all it takes if they want to get rid of you.
Submitted by Rich Migliore (not verified) on March 25, 2014 1:04 pm
It will be interesting to read the response from the PFT lawyers. I hope the Notebook will provide us with easy access to it as well. There is nothing in that filing which is not highly arguable, and it is noteworthy that the SRC's lawyers have carefully avoided raising any constitutional issues. They base their "application for a declaratory judgment" based solely on "statutory interpretation." Sharp lawyering.
Submitted by Paul Socolar on March 25, 2014 5:13 pm

We have requested the PFT's legal response. It will not be available today. We don't know when it's coming.



Submitted by Rich Migliore (not verified) on March 25, 2014 5:03 pm
Hi Paul. Thanks, It will take them a few days at least. If my memory serves me well they may have two weeks to respond. I'll check the Court rules when I have a chance. I will also likely read the cases the district's lawyers cited. I fully expect the PFT lawyers to rise to the occasion. Of course, you know that it is my position that what they are doing is unnecessary and counter productive for creating a collaborative culture and a sense of community. It certainly goes against the creation of a collective vision and common mission, which is necessary for effective leadership. As I said in 2007, on a bullet on the back cover of my book, "We must grow up as a nation and rise above the adversarial processes of an era long gone that destroy the community of our schools." Today, I fully stand behind those words.
Submitted by Anonymous (not verified) on March 25, 2014 6:59 pm
It doesn't matter for all practical purposes. If the Supreme Court sides with the dictator, then it needs to be ON !!!!!!! If the Supreme Court sides with the PFT, the dictator will ignore that decision anyway so it will still be ON !!!! Plus, Hite must be confident that the fix is in in Harrisburg. In any case, this is about FREEDOM make no mistake about it. The SRC wants to end ALL union and worker rights, that's the fact !! We can quibble about exact definitions and other minutia but the facts don't change----They want to kill our rights, both civil and worker. Don't get sidetracked.
Submitted by Anonymous (not verified) on March 25, 2014 6:00 pm
Sorry--that was Joe K above
Submitted by Rich Migliore (not verified) on March 25, 2014 10:30 pm
Nothing to be sorry about. We all know our labor history, and you are right, they are trying to take us backwards in time rather than lead us into the 21st century.
Submitted by Anonymous (not verified) on March 26, 2014 8:41 am
They can't ignore a Supreme Court ruling but what they can do is go bankrupt which is the most likely scenario right now.
Submitted by Joe K. (not verified) on March 26, 2014 10:07 am
What I meant to say was they would find ways around it.
Submitted by Jonathan (not verified) on March 25, 2014 10:54 pm
What is the make-up and disposition of the state supreme court? Hopefully it's not all Corbett appointees.
Submitted by Rich Migliore (not verified) on March 25, 2014 11:04 pm
There are 4 republicans and 3 democrats. All but one were elected. Correale Stevens was appointed by Corbett to fill a vacancy. I do not study them closely enough to say how they may rule. But the last time the district tried to pull the special jurisdiction argument, they were denied. But the PFT had a contract then.
Submitted by Bobbie Cratchit (not verified) on March 25, 2014 5:40 pm
Thank you Rich for that explanation. I figured the District doesn't want to willingly enter into the murky waters of the constitutionality of Act 46. Could you clarify my lay thinking...The District is asking the court to agree that Act 46 allows them to impose these working conditions, but they are not asking the court to rule on the legality of Act 46, correct? And wouldn't the PFT, in their response, demonstrate to the court that ACT 46 is unconstitutional? Or would that have to be a separate court case? Thanks for helping me understand.
Submitted by Rich Migliore (not verified) on March 25, 2014 10:31 pm
Yes, the district is just asking them to clarify that they do have the authority to impose certain terms as Paul has analyzed. They are basing their argument on the language of Act 46. No the district is not asking them to rule on the legality of Act 46 itself. The PFT does not have to raise constitutional issues, but they can if they want. They can choose to wait for a better case and a better time. There is always the consideration of whether they could do better in federal court, but they would have to come up with a federal cause of action. Maybe under the Civil Rights Act. I would lean toward thinking that they will argue labor law cases as the district did. This is gonna get to interesting.
Submitted by Paul Socolar on March 25, 2014 4:00 pm

Thanks for your comments. The District's petition to the court doesn't mention class size or directly try to argue that it is a "non-mandatory" subject of collective bargaining.

But in making the argument that they should not be required to bargain over rules about the numbers of guidance counselors or librarians per school, the petition argues that "staffing levels" are a non-mandatory bargaining topic, referencing the fact that the takeover law frees the District of any obligation to negotiate "staffing patterns and assignments." 

Submitted by Andrew Saltz (not verified) on March 25, 2014 8:52 pm
Thank you for writing this. Can you see any situation where the SDP/SRC is laying legal ground for acting in a similar manner on salary?
Submitted by Paul Socolar on March 26, 2014 1:32 pm

To the contrary ... at least in their legal argument here, it is very specific in making the case that they can make this move because the subjects (such as teacher assignment and prep time) are non-mandatory bargaining topics.

Submitted by Anonymous (not verified) on March 25, 2014 8:38 pm
That Coatesville decision was asinine. Basically negates the term of a contract. It assumes collective bargaining is a one way street where taxpayers will always give more for nothing in return. That is the problem w the city unions. They get workrules that create bloat and inefficiency and none of them ever go away. Default to the status quo. So 30 years later we are stuck with rizzo and goodes giveaways. Something as unproductive and incompetent as philly government takes decades to create, with insurmountable obstacles to anyone who wants to improve it
Submitted by Anonymous (not verified) on March 26, 2014 4:43 pm
school district of philadelphia,way to go ,all steps backwards and no steps forwards.your teachers are still using chalk in the year of our lord 2014......omg
Submitted by Anonymous (not verified) on March 26, 2014 4:36 pm
dr.hite is going exactly to the boston consulting groups playbook...
Submitted by Anonymous (not verified) on March 29, 2014 1:35 pm
Eli Broad Academy principle..."Create CHURN and DISRUPTION...its good for business profits." There is no research which says its good for schools or student performance...but who cares about that ...$$$'s baby, $$$'s !
Submitted by Anonymous (not verified) on March 27, 2014 4:45 pm
I entered the SDP in 2012. As a young teacher, I was so excited to leave a charter and join Philly. Boy was I wrong. As a 25 year old, I got out of there as soon as possible and into the suburbs. I urge all my young former colleagues to join me. The grass is greener.
Submitted by Anonymous (not verified) on March 29, 2014 1:14 pm
Maximize CHURN and DISRUPTION, its good for Eli Broad principle.

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