Originally appeared in the CAS Weekly NewsBlast. Written by Attorney Thomas B. Mooney.

Dear Legal Mailbag:

legal_mailbag_transparentLast year, I was a first-year principal at my elementary school and, as I got my sea legs, I let various things slide. However, this year I have a much better idea about the way my school should run. As we approach the end of the school year, I want my staff to be more business-like and focused on improving student achievement.

Specifically, the practice at my school has been that the last two days of the teacher work year are a complete waste of time. Supposedly the time is set aside for teachers to complete grading and clean up their classrooms. However, these days have devolved into a food and gab fest, with teachers bringing their different specialty dishes to school and spending these last two days in food tasting, conversation and laughter.

We have a school to run here, and last week I laid down the law. Rather than letting these two days go to waste, in the name of improving student achievement, I filled those two days with two faculty meetings, a safety drill, in-service presentations and group work on curriculum revision. The reaction of my teachers was swift and vehement. I was not particularly surprised that some of the older staff members would object to my breaking up their year-end party. But I was surprised to get a call from the superintendent inviting me to a meeting with him and the union leadership. Apparently, the union is now making some sort of “past practice” claim. Do they have a leg to stand on?

Idle Hands are the Devil’s Work

Dear Devil:

My guess is that you will not be winning any popularity contests at your school this year. While your dedication to student achievement is laudable, your approach was ham-handed. More important, it appears that you violated the rights of the teachers’ union by your unilateral action.

The concept of “past practice” is a rule of labor relations that holds that changes in working conditions may not be made unless (1) the action is authorized by the collective bargaining agreement, or (2) the employer negotiates a change in an established practice. Without all the facts, I can’t tell you whether the union has a valid claim, but I am concerned that you have overstepped by replacing the year-end camaraderie with serious work.

The “past practice” rule exists to facilitate contract negotiations. Working conditions (e.g., what people do, how much they work, and how hard and how long they work) are mandatory subjects of negotiation. However, it would be burdensome to require that the parties negotiate over all mandatory subjects. Rather, the rule is that the parties negotiate over the working conditions that either party questions. Working conditions on which neither party makes proposals simply carry over and are binding as “past practice” unless and until the parties negotiate a change in the practice.

Here, the year-end festivities you describe may well have become an established practice. Unless you have a contractual right to change the practice, the State Board of Labor Relations would likely find your unilateral action in changing the use of those days to be an unfair labor practice. To be sure, you have every right to be concerned that the last two days of the work year can be put to more productive use. However, the proper way for you to address that concern is to invite discussion and, if necessary, negotiation over a proposed change.

Please submit your questions to: legalmailbag@casciac.org.