FACTS ABOUT COLLABORATIVE CONFERENCING UNDER PECCA

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1 FACTS ABOUT COLLABORATIVE CONFERENCING UNDER PECCA [Prepared by the TEA Legal Services Division on November 27, 2012] Q: Did the General Assembly completely abolish the Education Professional Negotiations Act ( EPNA )? A: Yes. The Professional Educators Collaborative Conferencing Act of 2011 ( PECCA ) codified at Tenn. Code Ann et seq., completely replaced the EPNA, which was repealed in its entirety. Q: What is collaborative conferencing under PECCA? A: It is a process by which the chair of a board of education and the board s professional employees, or such representatives as either party or parties may designate, meet at reasonable times to confer, consult, and to exchange information, opinions and proposals on matters relating to the terms and conditions of professional employee service, using the principles and techniques of interest-based collaborative problem solving. Q: What is the effective date of PECCA? A: June 1, Q: Did PECCA suspend negotiations between local boards of education and local professional employees organizations? A: Yes, such negotiations have been suspended indefinitely. Q: Will existing collective bargaining agreements ( CBA s ) that were negotiated under the EPNA remain in effect until their natural expiration? A: Yes, and reopeners will remain negotiable if your CBA specifies the existence of reopeners. Upon termination of an existing CBA, subsequent professional employee relationships between the respective board of education and its professional employees shall be governed under PECCA. Page 1

2 Q: What is the desired outcome of participating in collaborative conferencing? A: Successful conferencing on allowable items results in a jointly prepared memorandum of understanding. The MOU shall be binding on the parties from the date it is approved by the board of education as an item on the agenda of a regular or special called board meeting, or at a later date explicitly stated in the MOU. Note that there is no employee vote required. Q: What can be the subject of collaborative conferencing? A: Collaborative conferencing is limited to the following terms and conditions of employment: 1. Salaries and wages; 2. Grievance Procedures; 3. Insurance; 4. Fringe benefits, but not to include pensions or retirement programs of the TCRS or locally authorized early retirement incentives; 5. Working conditions; except those working conditions that are prescribed by federal law, state law, private act, municipal charter or rules and regulations of the state board of education, the department of education or any other department or agency of state or local government; 6. Leave; and 7. Payroll deductions, except payroll deductions for political activities. Q: Are there any subjects in which collaborative conferencing cannot be held? A: Yes. There can be no collaborative conferencing on the following subjects: 1. Differentiated pay plans and other incentive compensation programs; 2. Expenditure of grants or awards; 3. Evaluations of employees; 4. Staffing decisions and board policies relating to innovative education programs or virtual educational programs; 5. Personnel decisions concerning assignment of personnel, professional duties, transfers, layoffs, reductions in force, etc.; and 6. Payroll deductions for political activities. Q: Given that there can be no collaborative conferencing on working conditions that are prescribed by federal law, state law, private act, municipal charter or rules and regulations of the state board of education, the department of education or any other department or agency of state or local government, what sort of working conditions can be subject to collaborative conferencing? Page 2

3 A: Conferencing teams will have to be clever as they conference on working conditions. For example, since a teacher s planning time is prescribed by state law or regulation, the team cannot conference on that. They could, however, call it something else such as interdisciplinary collaboration time and seek to reach an agreement with the board giving teachers a set amount of time each week to engage in such collaboration e.g., all math teachers meet each day for a set amount of time to collaboratively discuss teaching methods. A few other examples of working conditions that could be conferenced are reporting time, extra duties, additional duty free time (re-named something other than duty free time), assignment and compensation for extra-curricular activities, and teacher dress code. Q: Does PECCA require training before collaborative conferencing can begin? A: PECCA requires that a training program in the principles and techniques of interest-based collaborative problem-solving for use in collaborative conferencing be developed by TOSS in conjunction with representative organizations of school leaders and administrators and professional employees organizations by January 1, Such training programs are required to be implemented, as appropriate, within each LEA by July 1, No collaborative conferencing can be conducted by a local board of education until the required training has been implemented within that LEA. Q: Does PECCA recognize that professional employees have the right to be assisted by organizations in the collaborative conferencing process? A: Yes. Professional employees have the right to be assisted by organizations and to participate in collaborative conferencing through representatives of their own choosing. Q: How is collaborative conferencing initiated? A: Between October 1 and November 1 of any year, 15% of the professional employees of an LEA may submit to the local board a written request to conduct collaborative conferencing. The local board then appoints an equal number of local board members and professional employees to serve on a special question committee for the purpose of conducting a confidential poll of all eligible professional employees. The poll consists of two questions: First, whether the professional employees of the LEA want to undertake collaborative conferencing with the board of education. If the employee answers yes to the first question, then the second question asks the employee to indicate which organization the employee prefers to represent them in the collaborative conferencing. If the employee answers no to the first question, then the second question shall request the employee to express a preference for one of the professional employees organizations. Page 3

4 No board of education shall engage in collaborative conferencing unless a majority of those eligible to vote respond yes to the first question. If a majority vote yes to the first question, the board shall appoint between 7-11 persons to serve as management personnel, and the professional employees shall be represented by the same number of persons. The representatives shall be selected according to each organization s proportional share of the responses to the second question; provided, however, that only those professional employees organizations receiving fifteen percent (15%) or more of the responses to the second question shall be entitled to be representatives. A new poll must be conducted every three years. Q: Do the new definitions of management personnel and management team exclude anyone from what used to be the bargaining unit under the EPNA? A: Yes. Management personnel are certified by the local board of education to represent the board in conferencing. The new management team under PECCA includes principals, assistant principals, supervisors and others whose principle responsibilities are administration rather than teaching. In fact, there is no bargaining unit as there is no exclusive representative in collaborative conferencing. The employee team conferencing with the employer can have multiple groups or organizations as representatives of employees. This group of employees does not represent anyone on the management team. Q: Does a board of education have a duty or obligation to engage in collaborative conferencing? A: Yes, if a majority of those who are eligible vote to engage in collaborative conferencing. Q: Can my local association sue the board of education for unlawful acts committed before, during or after collaborative conferencing has commenced? A: Yes. PECCA does prohibit several unlawful acts and provides that you can file a lawsuit in chancery court but only after filing a complaint with the local board of education and seeking a reasonable resolution. If no reasonable resolution is reached between the parties, a complaint may be filed in the chancery court of the county where the local board of education is located. Major hurdles to overcome include the challenge of defining when a reasonable resolution has been reached, the limited window for getting it all done (no complaint shall issue based upon any unlawful act occurring more than three (3) months prior to the filing of the complaint ) and the multiple representatives on the employee side. Page 4

5 Q: What employee rights or actions are protected? A: PECCA, in a statement of policy and purpose, ensures the right of professional employees to participate in collaborative conferencing through representatives of their own choosing. PECCA proclaims that no professional employee, group of professional employees, or professional employees organization shall be denied the opportunity to represent themselves or groups of professional employees. Professional employees have been promised the right of self-organization, to form, join or be assisted by organizations, to participate in collaborative conferencing and to engage in other concerted activities for the purpose of other mutual aid and benefit. Q: Who assumes the cost of the poll? A: Those persons or organizations initiating the poll will be assessed the reasonable costs necessitated in conducting the poll by the chair of the special question committee. Q: Does PECCA require Collaborative conferencing? A: No. Q: Does PECCA require that the parties enter into a Memorandum of Understanding ( MOU ) at the conclusion of the collaborative conferencing process? A: Not unless the parties reach an agreement. PECCA does not require an agreement on any terms or a MOU. Absent an agreement and an MOU on terms and conditions specified for collaborative conferencing, the board of education shall have the authority to address such terms and conditions through board policy. Q: Who is covered by a MOU? A: All professional employees that are in position that require a license issued by the Department of Education. Professional employees does not include any member of the management team such as principals and assistant principals. Q: If an MOU is entered into, when does it expire? A: MOU s can be valid for up to three years. Page 5

6 Q: Can a school system still provide for payroll deductions? A: Yes, payroll deductions may continue as they are not illegal under PECCA. PECCA merely prohibits collaborative conferencing on the subject. Questions about employee and local association rights under the law can be answered by your local UniServ Coordinator or by contacting TEA Legal Services. Call TEA at or for additional information related to your individual rights, polling, proper subjects of collaborative conferencing and hints on how to help your local association be successful. Page 6