As we’ve seen over the past year, the only constant is change. A recent decision from the Department of Labor Relations (DLR) and Tuesday’s announcement from Commissioner of Education Jeff Riley further that theme.
The DLR’s Melrose School Committee decision gives school districts that have been restricted in their ability to change educational models by the memorandum(a) of agreement they entered into in the fall the ability to move forward with their desired educational model, while Commissioner Riley’s announcement indicates he will compel changes in school districts’ educational model in the near future. Changes in educational models based on the DLR’s decision and/or Commissioner Riley’s proposed action will likely impact school districts’ bargaining obligations.
Melrose DLR Decision
In Melrose School Committee, the Department of Labor Relations held that the decision of what type of educational model – in-person, hybrid, or full remote – is a matter of educational policy and, therefore, reserved exclusively to the District. As a result, regardless of what a school district may have negotiated in a memorandum of agreement, the agreement is not enforceable to the extent it restricts the school district’s ability to choose and change its educational model.
Like many school districts, Melrose negotiated a Memorandum of Agreement (MOA) with its collective bargaining units prior to the beginning of the 2021-22 school year. The MOA incorporated certain COVID-related metrics, e.g., community positivity rate, case counts, average daily incidence rate per 100,000 people, that would be considered when deciding which educational model to use. The Melrose MOA also incorporated consideration of the Commonwealth’s community color coding system in effect at the time. Unlike some districts’ memoranda, the Melrose MOA gave the superintendent the discretion to make the final decision regarding the educational model.
The Massachusetts Teachers Association, through the Melrose Education Association, asserted that the District violated the MOA by not moving to a remote learning model when the positivity rate rose above 2% and by allegedly stating it would not return to remote learning unless directed by the Commonwealth.
Although the DLR found the terms of the MOA were ambiguous and could not support the MTA’s claim that the District violated the MOA, the DLR’s decision is significant for its conclusion that learning models are a non-delegable right of management. As the DLR succinctly stated, “[w]hen the parties do negotiate over a nondelegable right of management, the resulting agreement is not enforceable.” As a result, even if the MOA had been unambiguous and appeared to require the District to use a fully remote educational model, that portion of the MOA would be unenforceable.
The DLR’s Melrose decision makes clear that the decision of what learning model to use is that of the school district and not subject to bargaining. School districts may rely upon the Melrose decision to disregard restrictive metrics or other provisions that have limited their ability to change to a different educational model. Other provisions of school districts’ memorandum(a) of agreement, e.g., regarding PPE, however, likely remain enforceable. School districts are strongly advised to confer with counsel to determine what other provisions remain enforceable and whether further impact bargaining obligations exist.
Potential Change in Learning Hours Regulation
Just after the Melrose decision clarified the scope of school districts’ authority to determine their educational model regardless of a union agreement to the contrary, Commissioner Riley announced his intention to remove that authority by stating he intends to seek the authority “to determine when hybrid and remote models no longer count for learning hours” to force “in-person learning five days a week this April.” Initially, this would only apply to Grades K-5. School districts, however, would still be required to offer remote learning for parents who want it.
If the Board of Elementary and Secondary Education grants Commissioner Riley’s request (as is expected) and he exercises that authority in a manner that is legally binding, e.g., by acting under an emergency amendment to the Student Learning Time regulations, school districts would be required to comply regardless of the terms of any existing memoranda. As noted above, school districts may still have an obligation to give their bargaining units notice and an opportunity to bargain to resolution or impasse over the impacts of any legally-mandated change to the educational model.
We strongly recommend that school districts considering a change in educational model that may be inconsistent with the terms of a negotiated memorandum(a), whether by choice based on the Melrose decision or in response to a subsequent mandate from Commissioner Riley, confer with counsel as far in advance as possible to consider potential collective bargaining implications.
Please feel free to contact any member of School Law Group if you have any questions about this update or any other school law issue.
