The Changing Landscape of Teacher Negotiations

1. The Changing Landscape of Teacher Negotiations Christopher Hirst Preston Gates & Ellis LLP 925 Fourth Avenue, Suite 2900 Seattle, WA 98104-1158 (206) 370-8336 (Tel) (206) 370-6086 (Fax) chirst@prestongates.com

2. The “Group Hug” Approach is not in Vogue • Events of Spring, Summer, and Fall 2002 clearly demonstrate that the landscape of teacher negotiations is changing. • Many districts witnessed significant changes in attitude and approach from local associations during bargaining. • While many districts had previously used a “collaborative” approach to bargaining, local associations became very aggressive and confrontational beginning in Spring 2002.

3. The WEA describes its change in strategy as follows: • aggressive local bargaining is a large component • WEA multi-pronged strategy, which also includes: • political action • community organizing

4. Aggressive bargaining manifested itself in ways not often seen for years in teacher bargaining, such as: • strident and unyielding positions • unrealistic demands • divide and conquer tactics • communication and miscommunication • community organizing

5. The WEA provides guidance and assistance to local districts concerning communications, such as: • providing regular information to the membership about the progress of bargaining, beginning with soft words and hard information. • WEA tries to build credibility for the hard rhetoric that follows, thereby obtaining significant impacts on the teachers.

6. The WEA provides guidance and assistance to local districts concerning communications (cont’d) • developing and implementing a rapid communications system (personal e-mail trees, telephones) • establishing, cultivating, and using a working relationship with local media • routinely issuing news releases • communicating directly with parents and community members (coffee klatches, flyers)

7. School districts must recognize that communication is an important component of their bargaining strategies. • Develop a communication plan before bargaining begins. • Communicate regularly with members of the teachers’ unit about information that has previously been presented at the bargaining table. • Communicate regularly with parents and the community about this information. • Use of hard facts is important. • Cultivate relationships with the media.

8. Relationships with the Media • Generally, media and public distrust institutions. • Return phone calls to the media. • Avoid “no comment.” • Have a consistent and straightforward message that gets repeated. • Words must match actions. • If you don’t know- say so- but get an answer promptly.

9. Understand that difficult negotiations have different impacts on various constituencies. • Teachers will have demands concerning personal business issues. • Parents will likely identify with the teachers and will be concerned for their children. • Building administrators may feel caught in the middle with potentially conflicting allegiances. • Central office administrators and Board members will be in the center of the storm.

10. Specific, Aggressive Tactics • Section 7 of the National Labor Relations Act indicates that employees may not continue to be paid while refusing to perform all the work they are hired to do – partial, recurring or intermittent work stoppages are not protected activities. • Penalties may include discharge from employment. • Injunctive relief is possible.

11. Specific, Aggressive Tactics • When is “Working to the Rule” or “doing the minimum become a slowdown or partial strike? • When employers voluntarily perform acts and employer has not required employees to perform them in the past, the work is not required to be performed. • Where employers have uniformly required performance of the activities as part of the work day or year in order for the employees to earn the expected pay, refusal to perform such work is not protected employee activity.

12. Aggressive Tactics • Specific work activities: Voluntary or Required? • workshops or inservice training • curriculum development • strategic planning/committee work • staff meetings • activities for which release time is granted • lesson planning • meetings to revise attendance procedures, reporting or grading, student discipline • open houses, curriculum nights • evaluation and goal setting conferences

13. Aggressive Tactics • Considerations: • How will the public view teacher work slowdowns? Teacher sympathy or anger? • How will the public view district action or inaction in the face of teacher slowdown tactics? • How will these views affect district strategy? - Should a district force teachers to strike rather than slowdown (e.g., the recent ILWU lockout)? - Will district inaction help gain community support for the district and against teachers? Vice Versa?

14. Aggressive Tactics • Expect that the Association will identify its view of the “weakest link” or lack of unity, so consider this tactic in setting district parameters for bargaining. • Expect issues to be linked to individuals. • Expect the Association to file unfair labor practice charges. • Review whether the district can show that it is bargaining in good faith if required to prove it.

15. If a strike ensues, expect the pressure points to differ depending on the stage of the strike. • During the first week, there will be little pressure on the district and virtually no pressure on the teachers; a party attitude on the picket lines. • In the second week, expect pressure to begin to build on the district. • In the third week and beyond, expect pressure to build on everyone.

16. Will you seek an injunction? • Be cautious. • Teacher strikes are illegal in this state. (Port of Seattle v. ILWU, 52 Wn. 2d 317 (1958). • Anticipate the need to show damages to the students and community as a result of the strike. • Will the proof be through written declarations, live testimony, or both? • SPI has no monitoring role if you operate a program after a back‑to‑work order from a court. WAC 180-16-162(2)(e). • If a district instead chooses to operate without a court order and with administrators and/or replacements, SPI has significant authority to monitor for required ratios of certificated personnel to students and disapprove the program if minimum ratios are not met. WAC 180-16-162.

17. If a back‑to‑work order is obtained, expect: • a vote by the teachers to defy the order • increasing personal contacts; confrontations with Board members and administrators • bargaining during the night and early morning before the teachers are due back to work

18. After return from a strike, expect: • attacks to be personally directly toward those actively involved on behalf of central administration and the Board • no confidence votes • recall efforts • School Board election tactics • demands for changes in the “system” (i.e., more decision-making power) Who really wins?