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The District’s court petition and the uncertain future of collective bargaining

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

In its petition filed last week with the Pennsylvania Supreme Court, the Philadelphia School District is asserting its right to make changes that could have the effect of casting aside nearly 50 years of collective bargaining history, during which its contract with the Philadelphia Federation of Teachers has grown to govern not just salaries and benefits but minute details of daily life in schools.

To the PFT, the contract codifies protections for its members and guarantees them everything from functional water fountains to the right of senior teachers to claim positions in preferred schools. The union has long argued that its working conditions are student learning conditions and that some provisions, like limiting class size and specifying when schools must have counselors and librarians, have acted as a bulwark against the steady erosion of services while also preserving jobs.

But 13 years after the state took over the District – and after negotiating two contracts with the PFT – the School Reform Commission is now trying to invoke special powers it received through the law that declared the District “fiscally distressed” and changed its governance. That law, Act 46, “remade the collective bargaining landscape” by stripping the union of its right to strike and “cut back sharply on the scope of the School District’s duty to bargain,” according to the petition.

District lawyers say that Act 46 exempts the District from negotiating a wide range of matters – so-called “non-mandatory” items under labor law – that, aside from wages and benefits, had long been the meat of the contract. These include staffing patterns and teacher assignments, class schedules, the academic calendar, layoffs and recall of teachers, and daily preparation time.

This petition cites six provisions of the contract. But if it prevails in its legal argument, other non-economic issues could also be affected.

Why is the SRC doing this now? It says that lack of money has forced its hand.

“During the current school year, the School District and the SRC have struggled to adjust to an unprecedented gap between actual funding levels and the amount needed to maintain prior year service levels,” the petition says. “The resulting cuts … left the School District with what can only be described as a bare-bones workforce – one that is 20 percent smaller than the year before and 33 percent smaller than just three years ago.”

It blames these “drastically reduced staffing levels” for requiring the District “to examine its work rules and practices and implement reforms that allows it to operate more efficiently and in a way that better meets the educational needs of its students.”

For instance, in assigning, laying off, and recalling teachers, the District wants to reduce the role seniority plays. Instead, it wants to give principals and school leadership teams the power to decide not only who works in what schools, but who is laid off and who is recalled.

“The piece of this I think is interesting, it is clear they are doing this for financial reasons,” said one local attorney involved with School District legal issues who did not want to be named. “They’re not going to lay off anybody if they have adequate funds. All of this is intertwined in the inadequacy of what [the District has] funding-wise.”

Susan DeJarnatt, a law professor at Temple who has written extensively about charter schools, said that although she is not an expert in labor law, she observed that the District’s actions are based on the 2001 “declaration of distress.”

One of the legal questions, she said, is “How long is a declaration of distress good for? It is bizarre to me that the state can issue such a declaration, take over the School District, screw up the funding, and then rely on that declaration” as a rationale for taking unilateral actions.

She also wondered why the SRC went straight to the Supreme Court in this matter, but hasn’t sought to use that legal shortcut to resolve a longstanding dispute with charter schools over whether the District can limit their enrollment.

Michael Masch, a former District chief financial officer who was involved in past contract negotiations, said that although the SRC may not have been required to bargain over certain matters, “it did, repeatedly” since 2001.

“Now the District wants the Supreme Court to say that all of that bargaining didn’t matter,” he said.

For their part, District officials say that they are putting forth the economic argument to show that the District is still in “distress,” the legal trigger for exercising the powers in Act 46. They are not seeking a remedy in the form of more funds, but rather more flexibility. The contract as it stands, they say, does not allow the District to operate efficiently with the funds available.

For instance, they want school schedules to build in collaboration time for teachers – they say this is a best practice – but they are forbidden by the contract from any control over the teachers’ daily preparation periods. Although some schools buy additional “prep” periods for collaboration, they can no longer afford this, the officials say.

Although the District’s petition complains that, as an example, 40 of its schools do not have a full-time counselor on staff, it does not seek funds to restore at least one counselor to every school, but rather cites that as another example of the need to abolish contract provisions that impede its flexibility.

PFT president Jerry Jordan calls this an “end-around” good-faith bargaining and signals that the District’s real purpose is stripping teachers of their rights.

“This is not about children, this is not about money. They’ve been lying all along,” he said.

If the District wins its argument, it could substantially gut a document that is, as much as anything, a legacy of the mistrust that has existed between the union and the District since the PFT won bargaining rights in 1965.

Take the seniority issue.

The role of seniority in assigning, laying off, and recalling teachers is one of the mainstays of the contract. Until the state takeover, the system was ironclad: All positions were filled strictly through seniority, with teachers choosing from available vacancies in order of seniority. Even brand new teachers right out of college chose their assignments in order based on scores on a certification test.

That system, designed to take human judgment out of the assignment process for fear of nepotism and favoritism, resulted in a culture that made it difficult – though not impossible if the principal was determined – to create teams of like-minded teachers in schools.

Since 2000, however, the union has agreed to partial “site selection." For some positions, teachers must interview at schools with openings and be chosen by the principal and leadership team. And today most of the vacancies in the District are eligible to be filled through this process.

These positions include all of those in the nearly 140 “distressed” schools and all of the teacher jobs at more than 30 schools that vote each year for full site selection.

At the rest of the schools, about 50, at which there has either not been a vote or the faculty rejected it, half the jobs can be filled through site selection.

All this adds up to between 80 and 90 percent of jobs eligible to be filled through site selection, according to Arlene Kempin, general vice president of the PFT.

However, according to District records, only between 40 and 60 percent of positions over the last few years have actually been filled this way, in part because there are some openings for which no one applies.

Kempin said that this shows site selection alone hasn’t solved one of the District’s biggest problems – sending the most qualified teachers to the neediest schools. But in any case, she added, the biggest issue with seniority for the union concerns layoffs and subsequent recalls.

“There’s such a minuscule number that are not filled through site selection,” she said. “Site selection has already been negotiated, and we have so much of it.

"For us, layoffs have to be done according to seniority, and recall in the order of reverse seniority.”

For instance, last summer the District laid off all its counselors, then recalled them selectively when it pieced together new funding. Calling back the counselors in order of seniority would have triggered a musical chairs game of reassignment as each in turn claimed an open position. Instead, the District decided which schools would get full-time counselors, and mostly called back individuals who previously worked in them to fill their former jobs.

The result was that some of the most senior people who were the second or third counselors in larger schools were not called back, while some with just a few years of experience were.

The District said it needed to do this in the name of staff stability, wanting students to continue to work with counselors they knew. The union, however, filed grievances against the process, arguing that it is fundamentally unfair to its members.

"Some counselors with 20 years of seniority are still out of work, while somebody with just two years has been back since day one,” Kempin said. “That’s our stumbling block. … Seniority is the backbone of any contract. It’s the most objective way. If you do it any other way, you are leaving open that you didn’t get the job because you were a woman or white or black or green. When you introduce subjective criteria, it raises questions and mistrust.

"If you’re certified and qualified, there is no reason you can’t choose where you want to teach.”

The PFT is expected to file its response to the District’s petition on Thursday.

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