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

This article was originally published in The Notebook. In August 2020, The Notebook became Chalkbeat Philadelphia.

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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