Originally appeared in the CAS Weekly Newsletter.
Written by Attorney Thomas B. Mooney.
Dear Legal Mailbag:
I hope that you are having a nice summer. As a new principal of a big elementary school, I was enjoying mine, but now I need your help. What happened was that three weeks ago, a big shipment of books and supplies came in unexpectedly. The new business manager is a bit of a pain about inventory, so I figured that I had better log in exactly what we received. The problem was that I was planning to take some well-deserved vacation the following week.
I called my secretary and asked her to come in for a few days to help. She gave me a little attitude because she doesn’t usually work in the summer, so I used my negotiating skills. I don’t have any money in my budget to pay her, but I offered her two days of comp time during the school year for every day she helped out, a total of six days. In addition, I told her that we could get the job done if she worked for only five hours on each of the three days. By the end of the conversation, she said OK, and I thought she even sounded enthusiastic for this opportunity to earn some time off during the school year.
You can imagine my surprise and frustration when I received a grievance the week after she came in to help, claiming that I had violated the contract by “ordering her in to work outside the negotiated work year.” Fit to be tied, I called her right up to ask what on earth was going on. A deal is a deal, I told her, and I complained that I would find it hard to trust her going forward. Then, the Union filed an unfair labor practice against me the very next day, alleging that I had interfered with her “protected rights,” whatever that means. This is ridiculous! What can I do about this harassment?
My first recommendation is that, when you are in a hole, you should stop digging. Here, you have dug yourself a big hole by your impressive ignorance of the statutory rights of your secretary.
Let’s start with your brainstorm to provide comp time later in the school year in lieu of paying your secretary her regular pay. Non-certified employees of a school district are “non-exempt” employees, i.e., they are not exempt from the wage and hour statutes, which require that they be paid for all hours worked. Indeed, non-exempt employees are even entitled to pay when you “permit” them to work. The underlying public policy is that we can never be sure if an employee has truly volunteered to work, and thus we must presume that any work done by a non-exempt employee was required. Strike One.
In addition, you sought to strike a deal individually with a union employee. You can’t do that. When a union has been recognized as the exclusive bargaining agent for a group of employees, you must go through the union if you want to modify working conditions for a member of the bargaining unit. Here, you asked the employee to come in over the summer. Absent a past practice that establishes summer call-ins as a working condition, you (and the school district more generally) must reach out to the union with the request. You have to try to work it out with the union, not with the individual employee, who may well feel coerced when her boss calls and asks for help. Strike Two.
But you couldn’t leave it there. You went ahead and called the employee and essentially threatened her for filing a grievance. As a union employee, however, the secretary had every right to file a grievance. To be sure, some grievances are without merit, but irrespective of the merit of a grievance, filing a grievance is a basic element of the right of a union member to engage in concerted, protected activity. Expressing your concern, especially by saying that her filing the grievance will now affect your ability to trust her, can certainly be seen as interference with her rights as a union employee, which is indeed an unfair labor practice. Strike Three.
I am sure that you are a good principal in some ways, but you have a lot to learn about labor relations. You better get busy.