Originally appeared in the CAS Weekly Newsletter.
Written by attorney Thomas B. Mooney.

Dear Legal Mailbag:

Last week, I was watching YouTube, and I saw this great speech by some admiral about how making one’s bed every morning is the key to success. I was quite inspired, and I thought that the teachers at the school where I am principal would benefit from the admiral’s insights. At our staff meeting last month, I made all the teachers watch the video (it is only 14 minutes), and then I announced my new plan to apply the admiral’s lessons to running our school. Going forward, I told the assembled faculty, clean classrooms will be required. By clean, I elaborated, I mean Navy Seals clean. No messy piles of books or clutter. Rather, I will be expecting every classroom to have chairs perfectly aligned, spotless counters and all books piled with corners square, with the long end perpendicular to the table or counter on which they are kept. Smiling my warmest smile, I ended the faculty meeting that day with the observation that a well-organized room promotes clear thinking and greater learning.

Some of the teachers took to this new approach with enthusiasm, and I was happy to see them at the end of the day carefully aligning the chairs in their classrooms. Other teachers, however, did not change their behavior; and, their classrooms remained almost as messy as before. So I did what any good admiral would do – I conducted room inspections, and I gave some teachers written notice that they had “flunked” inspection, giving them 48 hours “to shape up or ship out.”

I thought that the smiley face after “ship out” would convey my fine sense of humor (though of course I was serious with my expectations). But rather than smile with me and clean up their rooms, some of these teachers went to see the union. Not too long thereafter, my building representative from the union presented me with a written cease-and-desist demand. He explained that the union would be filing unfair labor practice charges against me unless I immediately rescinded my orders and removed the inspection “flunk” notifications from the teachers’ personnel files. Can I stand my ground here?

Thank you,
Never Surrender

Dear Never:

I hope that you know that your admiral friend never had to deal with a union. While I applaud your efforts to run a tight ship, you will have to stand down with these inspections.

The issue here is whether you have unilaterally changed working conditions. In a union setting, the employer must negotiate with the union over “wages, hours and conditions of employment.” Before an employer unilaterally changes working conditions in a union workplace, it must negotiate with the union over such proposed changes. Here, the question is whether you changed working conditions or whether you were simply exercising your management right to supervise the teachers in your building. Sadly for you, the exuberance of your directives and subsequent inspections make it pretty clear that you have changed working conditions without prior negotiation, an unfair labor practice.

Not every change in the workplace will be considered a change in working conditions, and the question is whether the new directive significantly changes how employees are expected to do their jobs. Your directives about keeping all counters clean, about squaring the corners on all piles of books, and perfectly arranging the classroom chairs appear materially to change expectations for teachers. Moreover, your then “flunking” teachers for not meeting these expectations further demonstrates that you have established new conditions of employment.

Legal Mailbag is not saying that you must tolerate sloppy teachers or sloppy classrooms. You have every right to speak to individual teachers whose classrooms are messy or disorganized and to direct that they straighten up their classrooms. If your efforts in that regard were challenged (which is unlikely), you would stand on solid ground by explaining that you have not changed anything and that the expectation that teachers maintain an orderly classroom is long established. Slow and steady wins the race.