Category Archives: Collective Bargaining

Update on Experience Ratings: LD300

A letter to the editor in the May 14, 2013 edition of the Portland Press Herald led me to check out a bill introduced by Rep. Henry Beck (D-Waterville ), LD 300.

The bill Summary says: “This bill provides that an insurer providing health insurance covering employees of a school administrative unit is not required to provide loss information concerning those employees if requested by the school administrative unit.”

In other words, the bill would negate the effects of LD 1326 from last session, An Act to Allow School Administrative Units to Seek Less Expensive Health Insurance Alternatives. Oh, ho, I thought – a way out of the conundrum into which the MEA Benefits Trust put its members when it released its 2013-14 premiums based on  experience ratings (aka loss information).

Not so fast.  LD300 has now been carried over to second half of the Maine Legislature’s 126th biennial session. I do not know why.

It appears on the surface that both the Maine Education Association and its health insurance trust, the MEA Benefits Trust, would have benefited from this bill. So, despite Steve Robinson‘s (of the Maine Heritage Policy Center and The MaineWire) blithe Twitter characterization of the MEA as the Maine Democratic Party‘s “union overlords” in another context, the organization may not have had enough influence to get the bill passed.

Image

If the MEA wanted the bill carried over then I suppose his point may be well-taken. Why the MEA would want to have done so, though, since it fought the original LD1326 so hard, both in the Maine Legislature and in the courts, is unknown.

At this point, then, unless LD 300 passes quickly through the 2nd session and is enacted as emergency legislation, the effects of MEABT choosing to implement its own experience ratings will have been felt by school systems and local Associations across the state for two years.

In a simple example, School Systems A and B, each of which pays the full health insurance premiums for its 50 teachers, could have widely different budget concerns 2 years out. If School System A was assigned an experience rating of 0% for both years, but School System B had 13%, then School System B would pay almost $100,000 more than School System A by the end of 2015 just for its teachers, let alone its support staff and administrators.

MEABT rates 2 yrs

How those costs will impact funding and budgeting decisions at both the state and local levels next year is yet to be seen.

ADDENDUM (5/21/13): It occurred to me that I did not emphasize strongly enough one primary fact in all this: School System A and School System B are paying very different prices for THE SAME product on behalf of their teachers.  Not “similar” products. Not “almost identical” products.  Exactly the same product from the same provider.

It would be as if 2 people walked into Wal-Mart and each picked out the same style, size and quality sweater.  When the first goes to the register, the price rings up as $20.  When the second goes through, the price is $22.60 (13% more).  The second customer storms up to the Customer Service desk and asks, “What the heck?” The Wal-Mart employee can only say, “Some people get charged one price and other people another. It’s company policy.”   Except in the case of the MEABT experience-rated premiums, it’s the customers’ own Trust that is creating the disparity, not some anonymous global retail giant.

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Health Insurance Conundrum for Maine’s Teachers

3 years ago, I was employed by the Maine Education Association as one of 16 UniServ Directors (union rep) in the state. We all had basic bargaining strategies we passed along to local Associations, but an important one was: “Don’t create different levels of benefits for employees within a bargaining unit”.   For example, don’t permit new teachers to be singled out for a lower level of benefits than veteran employees. As health insurance costs rose over the years, School Boards/Committees would often propose to have all teachers hired after a certain date be offered only individual health insurance with no Board/Committee contribution to family costs. Local Associations were strongly encouraged to resist such proposals.

I left the organization in November, 2010. During the next legislative session, LD 1326, An Act to Allow School Administrative Units to Seek Less Expensive Health Insurance Alternatives, was approved by the Maine Legislature and signed on June 21, 2011 by then-new Governor Paul LePage.   A key section of the new law was:

Sec. 3. 20-A MRSA §1001, sub-§14, ¶D  is enacted to read:

… 

D.  In order to facilitate the competitive bidding process in procuring health insurance for a school administrative unit’s employees under this subsection, a school administrative unit may request from the insurer providing health insurance coverage to its employees and retirees loss information [experience]  concerning all of that school administrative unit’s employees and retirees and their dependents covered under the school administrative unit’s policy or contract pursuant to Title 24-A, section 2803-A.

The MEA Benefits Trust (an insurer that provides health insurance through Anthem Blue Cross and Blue Shield to the MEA and its members) spent about a year fighting that provision in court, but ultimately lost and decided against any further legal action in November, 2012.  The Trust would be legally obligated to release experience ratings school system–by-school system when asked to do so.

Move forward to April, 2013: the MEABT announced that the 2013-14 insurance rates would be based on experience (0, 3, 6, 8, 11 or 13% depending on the school system). Huh?  OK, clearly they had to release experience information by law, but use that information themselves to set rates? That was unexpected and contrary to the bargaining advice MEA had been offering for years.

There may well be some perfectly logical explanation as to why MEABT chose to base health insurance premiums on experience information, but I don’t know what it is.  However, what I can do is extrapolate a worst case scenario as what happens a few years down the road:

Pick any two neighboring school systems (System A and System B) of 30 teachers each.

ö         Assume the average teacher salary three years from now is identical and each teacher earns the average: $55,000

ö         Assume each school system pays the full cost of the teacher’s health insurance on the ChoicePlus plan.

ö         Assume each teacher  is paying for the additional cost of family health insurance on the ChoicePlus plan.

ö         Assume that each school system’s experience rating remains the same for the next three years.

  • System A: 0%
  • System B: 13%

Both teachers will be paying a lot for the family’s health insurance ($12,500 annually for Teacher A or $42,500 in annual compensation; $20,000 per year for Teacher B or $35,000 in annual compensation.)  But the teacher in system B will be paying about $8,000 more out-of-pocket for her family’s health insurance than the teacher in system A. That’s $656 per month Teacher B won’t be getting in her paycheck that Teacher A will. See: 2013-14 MEABT Rates2

From the school systems’ perspectives 3 years down the road, School System B will on the hook for an additional $135,000 over System A ($4,500 annually for each of its 30 teachers).

What the policy implications at the state level will be as health insurance changes when the federal Affordable Care Act comes online is an unknown.  Additional health insurance providers may well come into the marketplace over that period, too as the law intends.  But the Essential Programs and Services Funding model for Maine schools just had one more wrench thrown into the works.

One has to think the employment decisions made by teachers will become significantly different over that three-year period if the scenario plays out as I have described it.  These decisions will not be made because one school system offers a better level of benefit than another, but because the teachers’ own insurance trust chose to treat different school systems disparately based the experience ratings they fought so hard against.

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Stopping the Minimum Teacher Salary

According the Maine Department of Education’s website, followed by an article in the Bangor Daily News today, the State of Maine has decided to stop subsidizing the minimum teacher salary. The minimum teacher salary has been $30,000 in Maine for many years ($27,000 in 2005-06; $30,000 since then) [20-A MRSA 13405, 13406]. However, the state has been reimbursing school systems that did not pay the minimum.

The effect of this policy has been to keep down starting salaries in many smaller, rural school systems around the state.

For example, a typical salary scale in 2004-05 might have looked like this:

STEP SALARY
0 25,000
1 26,000
2 27,000
3 28,000
4 29,000
5 30,000
6 31,000
7 32,000
8 33,000
9 34,000
10 35,000
11 36,000
12 37,000
13 38,000
14 39,000
15 40,000
16 41,500
18 42,000
20 42,500
25 43,000

So, in 2004-05, a new teacher (Teacher A, no experience) would have been hired at $25,000 (Step 0 on the negotiated scale).

In 2005-06, another new teacher (Teacher B) could still have been hired at $25,000, but paid $27,000. The state would have reimbursed the school $2,000 for Teacher B. Even Teacher A, hired the year previously, would have garnered the school system a subsidy because Teacher A (now at Step 1) was still $1,000 below the mandatory minimum.

A year later, another new teacher (Teacher C) might still have been hired at the same $25,000, but paid $30,000. The school system contributed $25,000 and the state the other $5,000. The two previously hired teachers were each also paid the $30,000; the school system got reimbursed $3,000 for Teacher A, $4,000 for Teacher B. Those subsidies totaled $12,000 that the school system did not have to spend out of their own budgets, but helped them pay newer teachers almost as much as their colleagues who had many years’ experience.

There was almost no incentive to move the scale below Step 5 to anything other than where it stood. Any money that became available during the years since 2005 would have been applied to the higher steps on the scale. New teachers became stuck at $30,000 until they reached Step 6 – seven years into their careers!

It is long past time for the State of Maine to stop the minimum teacher salary subsidies. However, the Essential Programs and Services funding formula also needs to change in order to make sure smaller, rural school systems can actually afford to pay their teachers what they are worth: the same as professional educators in other parts of the state.

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New Teacher Evaluation Process for Maine

A, by circumstances beyond my control, very short legislative history of teacher evaluations in Maine:

 Until the Spring of 2010, Maine teachers could not legally be evaluated using student assessments. The previous law read: “The student assessment program is separate from local practices and procedures regarding supervision and evaluation of a teacher for retention by a school administrative unit.” [20-A MRSA 6204(3), now repealed].

When the federal Race to the Top was adopted, there was significant debate over various state-level educational policies that stood in the way of Maine getting any of the RttT money.  One of those was Maine’s prohibition against linking teacher evaluations with student test data.  LD 1799 was introduced in order to eliminate that prohibition.  You can read some of now-Commissioner of Education Steve Bowen’s thoughts about then-LD 1799 here.

Despite their professed opposition to the bill …

LD 1799 proposed the removal of a 25 year old firewall between teacher evaluations and student testing. MEA opposed it, saying that it was sound public policy and that the legislature would be breaking a promise made to teachers with the introduction of the Maine Educational Assessments.

… the Maine Education Association proposed a solution that allowed the prohibition to be eliminated: create a stakeholder group to “review” teacher evaluation models that had been “established” by the Maine Department of Education.  Since the MEA was part of that stakeholder group, I expect they thought they could control the process sufficiently to keep student test data out of the evaluation models.  Given that the two MEA representatives were outnumbered by the eight members of the group who belonged to various administrators’ professional associations, though, I wondered how that could work.  Since MEA proposed that group composition, they were in no position to gripe.

Anyway, in the current legislative session – no surprise – the inevitable happened: the terms of the old LD 1799 were changed by the language of the new LD 391 (soon to be part of 20-A MRSA 13802). Most of the old (relatively-speaking) language was kept, but a few major changes were made:

  • the word “develop” became “propose”;
  • the Department of Education is no longer able to “adopt” but could only “put forth” an evaluation model;
  • the July 2011 deadline for that the evaluation model being written was eliminated; and, last but certainly not least,
  • this language was included: “Nothing in this section prevents a school administrative unit from developing and adopting its own models for teacher and principal evaluation.”

Uh-huh.

So, in the space of one year – at the initiation of the union that supposedly protects teachers against arbitrary employer actions  – the 26-year old Maine law that prohibited student test data from being used in teacher evaluations was eliminated and the ability of school boards/committees across the state to implement whatever teacher evaluation processes they want is soon to be in place (90 days after the end of the legislative session, so around the beginning of the 2011-12 school year).

As far as I know, MEA has yet to say a word about this conundrum. So, here’s my two-cents worth.

Dear MEA local affiliate Presidents and Negotiators, these are the two terms you need to know, understand and employ:

  • Meet and Consult
  • Impact Bargain

If you don’t know what those mean or how to make them work, NOW is the time to learn.  You can check my previous blog posts for the Meet and Consult legal requirements.  I’ll be discussing “impact bargaining” in the weeks to come.  You should also check with your region’s UniServ Director for any recommendations MEA may develop about this difficult and touchy subject.

Best,

Nancy

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Retirement Concerns for Maine Educators

A Bangor Daily News article last week pointed out what at least one Maine school superintendent is doing in response to Maine Governor Paul LePage’s proposals around teacher and state employee retirement.  Dr. O’Neill is being proactive and making the best deal he can for himself given the current, uncertain, state of affairs.

Many Collective Bargaining Agreements contain a deadline – some already past – about educators notifying the school system of their retirement so as to collect the equivalent of up to 30 days unused sick leave to be put toward their final earnings calculations [5 MRSA 17006(13)(B)].

Given the Governor’s proposals, the question local Associations – who represent large numbers of active teachers and other school professionals around Maine, but not superintendents – in the immediacy should be: what can we do, via the collective bargaining process, to protect our members?

When I put this very basic question out there via the Save Our Retirement group on Facebook, the following exchange occurred:

Me: I can only hope that MEA has already provided advice to local Associations on this matter so their members will be as protected as possible given the situation. I hope, but doubt.

[Member]: Nancy, haven’t heard a thing.

Blakney: Given that there is no rehiring plan as of yet (Sawin [Millett, Maine’s Commissioner of Department of Administrative & Financial Services] said last Friday they hadn’t yet come up with a plan and got laughed at) from the LePage admin, it would be difficult to provide guidance.

Joyce Blakney is the Treasurer of the Maine Education Association.  I completely disagree with her that it is “difficult to provide guidance” in this situation.  Certainly it would not be possible to solve address every concern, but not provide guidance? Come on.

So, recognizing that I am simply a retired kibbitzer, here’s my thought on possible language that could be negotiated between local Associations and school board/committees that would – at least – give teachers and other school professionals as much as time as possible to make such an important and personal decision as retiring, particularly when they may not be ready to do so under normal circumstances:

ADDENDUM to the COLLECTIVE BARGAINING AGREEMENT:

Despite any contract language to the contrary, for the 2010-2011 school year any bargaining unit member considering retirement must submit a Letter of Intent to Retire to the Superintendent of Schools and School Board/Committee no later than the final day of the school year.

The unit member will provide written notification to the Office of the Superintendent of his/her final decision to retire, or not to retire, within seven days of the Governor’s signature on whatever bill that makes changes to the current Maine Public Employees Retirement System language for teachers in the State of Maine [5 MRSA 17001, et seq].

All other benefits of the collective bargaining agreement will apply to a bargaining unit member who chooses to retire under the provisions of this agreement.

Obviously, there are lots of tweaks that could be made to this, but the basic concept should provide some breathing room for teachers and other professionals so long as it is in place sooner rather than later.  Any member or local Association leader thinking about this, please contact your area’s UniServ Director for further information.

Footnote: MEA’s lobbyist, Steve Crouse, was a member of the Unified Retirement Plan Task Force that issued a report just about a year ago.  According to the Executive Summary, “The purpose of this report is to respond to the reporting requirement of Maine State Resolve 111, “To Reform Public Retirement Benefits and Eliminate Social Security Offsets” passed in May, 2009, by the 124th Legislature. The reason for the legislation is to design a unified pension and health benefit plan for all state employees and teachers who are first employed after December 31, 2010 with no prior creditable service.” Clearly the issue of pension reform – and therefore potential impacts – is not a surprise to anyone, particularly MEA.

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Meet and Consult, Part II

You may remember the following scenario in relation to the question of “What is Meet and Consult”?

A newly-hired elementary school (300 kids, 15 classroom teachers and 5 others) principal wants to institute a different math/science curriculum.  She talks it over with the superintendent who says, “Makes sense to me; go ahead and take a look at options.” Over coffee a few days later, she mentions her idea to two teachers.  She then orders a complete set of new textbooks with related audiovisuals, computer programs and more for all the classrooms based on her experiences with it at her previous school.  The materials arrive in early June and she proudly announces at the final staff meeting of the year, “You’re going to love this system; we’ll all need to get on board with the new curriculum next year.  It will take some time to get used to it, but we’ll work together to iron out any bugs.”

I also posted the M&C requirements as laid out in the 1982 MLRB case, Southern Aroostook:

The purpose of the meet and consult obligation is to ensure that school committees consider their employees’ comments and concerns before implementing or changing educational policy.  The duty to meet and consult thus is a mechanism  for insuring employee input in non-negotiable policy areas, designed to further the Act’s purpose of improving the relationship between school committees and their employees.  Several elements are necessary to carry out the purpose of the meet and consult obligation:

1.  Notice that a change in educational policy is planned must be given to the bargaining agent, so that it can timely invoke the meet and consult process if employees wish to comment on the changes;

2.  Pertinent information about the planned change must be provided so that the bargaining agent and employees can understand the change and make constructive comments about it.

3.   Actual meeting and consulting at reasonable times and places about the planned change must occur upon receipt of a ten day notice or other request to meet and consult by the bargaining agent.  A school committee is obligated to come to meet and consult sessions with an open mind, to discuss the planned change openly and honestly, and to listen to the employees’ suggestions and concerns.

4.  Mature consideration must be given to the employees’ input before the change is implemented, and if any of the employees’ comments or concerns are meritorious, the school committee must decide in good faith whether they can be accommodated.

So, let’s think about the scenario and run it through the requirements:

First, is the matter one of “educational policy”? Yes.  Curriculum is clearly a matter for the school committee/board; it is not directly negotiable.

SIDEBAR: how did the principal manage to make a change in a matter of educational policy without the board/committee being involved? It happens all the time. School boards/committees typically meet monthly, sometimes biweekly, for about 2-3 hours.  They leave most day-to-day issues to the superintendent and administrative staff.  After a while, no one blinks an eye when new routines are implemented, or textbooks bought, or schedules changed without the school board/committee having any idea.

Back to the Southern Aroostook requirements:

1a. Notice (by the school committee) that a change in educational policy is planned must be given to the bargaining agent:

  1. Nope.
  2. Even if the Association President had been one of the two teachers, a mention over coffee is hardly “notice” in the formal collective bargaining sense of the word.

1b. The bargaining agent [must have time to] invoke the meet and consult process if employees wish to comment on the changes.

  1. Again, no. The bargaining agent (Association) didn’t know, so they couldn’t do anything.
  2. Even if they had figured it out, they can’t meet and consult with the Principal (or even the superintendent), only the school board/committee.
  3. And, even if they had figured it out and asked to meet and consult with the school board/committee, the response would most likely have been, “What the heck are you talking about?” or a variation thereof.

I’m sure you get my drift – the M&C process doesn’t work with a relatively informal change, no matter how important – so let’s not go any further into the requirements as they apply to this scenario, but rather think about what might have happened had this been a Committee/Board level policy.

The first thing to remember is that the Association and the Board/Committee would not have been negotiating the IMPACT of the policy change on the teachers; that’s another post entirely.  They would have been talking about whether or not:

  • the policy made sense in this school
  • it was good for students
  • it would help increase student learning
  • it would benefit all students equally
  • and other considerations of this sort

Had the bargaining agent (Association) had the opportunity to talk with teachers, they might have found that some teachers might have:

  • had experience (good or bad) with the proposed system
  • had experience (good or bad) with other curriculum systems
  • preferred to do more research before making a decision
  • thought the current system was working just fine
  • been worried that the proposed system would be too difficult for their special education students, or not challenging enough for the gifted ones.

The Association could then have met with the school committee/board and raised these points.  They might even have proposed an alternative which the school committee/board could have adopted in place of the principal’s plan.

It’s those sorts of issues that the MLRB had in mind when it said the purpose of the meet and consult process was … improving the relationship between school committees and their employees.

So, next time, we’ll go back to the teacher evaluation bill (LD 391) and think about the meet and consult process in that context.

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Meet and Consult, Part I

I listened on Monday to some of the Maine Legislature’s Joint Committee on Education and Cultural Affairs hearing on LD 391: An Act Concerning Models for Teacher and Principal Evaluations.

At one point, Roger Shaw of SAD #42 in Mars Hill, speaking in favor of the bill on behalf of the Maine School Superintendents’ Association, said that it would be important for local Associations and school boards to “meet and consult” over the issue of teacher evaluations should the bill pass.

The purpose of this post is not to comment on the relative merits of LD 391, but rather to explain what the process to which Mr. Shaw referred is all about.

Going back, as we often do, to the statute that permits Maine teachers to negotiate with their employers, 26 MRSA §965, we see the phrase “meet and consult” in part C:

1. Negotiations.  It is the obligation of the public employer and the bargaining agent to bargain collectively. “Collective bargaining” means, for the purposes of this chapter, their mutual obligation:

C. To confer and negotiate in good faith with respect to wages, hours, working conditions and contract grievance arbitration, except that by such obligation neither party may be compelled to agree to a proposal or be required to make a concession and except that public employers of teachers shall meet and consult but not negotiate with respect to educational policies; for the purpose of this paragraph, educational policies may not include wages, hours, working conditions or contract grievance arbitration;

OK, so the obvious question is: what does it mean to “meet and consult but not negotiate”?

First, remember that anything that is negotiated between the parties to a collective bargaining agreement is binding on the parties. So, if teachers and school systems agree on a salary scale, for example, and the school system refuses to pay those amounts, the employees can go to an arbitrator and ask that person to order the school system to do what it agreed to do.  If the school system refuses to abide by the arbitrator’s decision, the matter can be pressed in court.

Since the subsection above says that public employers of teachers many not negotiate about educational policies, the clear implication is that the “meet and consult” (M&C) process is not binding on the parties.

If the process isn’t binding, what good is it? Well, the Maine Labor Relations Board took a look at that question back in 1982 with a case out of the Southern Aroostook Community School District (CSD 9) in Dyer Brook/Island Falls.

The facts of the case are complicated, but the part of the decision that explains the meet and consult process is relatively brief and – wonder of wonders! – concise:

The purpose of the meet and consult obligation is to ensure that school committees consider their employees’ comments and concerns before implementing or changing educational policy.  The duty to meet and consult thus is a mechanism  for insuring employee input in non-negotiable policy areas, designed to further the Act’s purpose of improving the relationship between school committees and their employees.  Several elements are necessary to carry out the purpose of the meet and consult obligation:

1.  Notice that a change in educational policy is planned must be given to the bargaining agent, so that it can timely invoke the meet and consult process if employees wish to comment on the changes;

2.  Pertinent information about the planned change must be provided so that the bargaining agent and employees can understand the change and make constructive comments about it.

3.   Actual meeting and consulting at reasonable times and places about the planned change must occur upon receipt of a ten day notice or other request to meet and consult by the bargaining agent.  A school committee is obligated to come to meet and consult sessions with an open mind, to discuss the planned change openly and honestly, and to listen to the employees’ suggestions and concerns.

4.  Mature consideration must be given to the employees’ input before the change is implemented, and if any of the employees’ comments or concerns are meritorious, the school committee must decide in good faith whether they can be accommodated.

Once a school committee has satisfied these elements of the duty to meet and consult, it is free to implement or change the educational policy matter.

Before we go on to Part II of this discussion, please consider the following scenario:

A newly-hired elementary school (300 kids, 15 classroom teachers and 5 others) principal wants to institute a different math/science curriculum.  She talks it over with the superintendent who says, “Makes sense to me; go ahead and take a look at options.” Over coffee a few days later, she mentions her idea to two teachers.  She then orders a complete set of new textbooks with related audiovisuals, computer programs and more for all the classrooms based on her experiences with it at her previous school.  The materials arrive in early June and she proudly announces at the final staff meeting of the year, “You’re going to love this system; we’ll all need to get on board with the new curriculum next year.  It will take some time to get used to it, but we’ll work together to iron out any bugs.”

Questions:

  1. Was the adopting this curriculum a matter of educational policy?
  2. If so, were the M&C processes laid out in Southern Aroostook followed?

Next time: M&C – how it really works.

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