The Dangers of August 31


August 31st and the waning days of summer should be a time of renewal, a fresh school year with new expectations, students bright eyed and ready to learn. The last day of the eighth month can also represent the final day of a worn out, old, and beat up Collective Bargaining Agreement. Teachers, Administrators, and School Board Members are ready for a Contract with a face lift.


Unfortunately, the economics of our time have brought teacher negotiations in many corners of the Commonwealth to a standstill. Taxpayers unwilling to part with depleted funding, and teacher unions in denial that we’re going through the greatest economic calamity since the Great Depression.


The result: the old Contracts overstay their welcome, way past their expiration date.


What happens, then, if teachers begin working the days leading up to August 31st in preparation for the 2010-2011 school year? Teachers couldn’t possibly be entitled to a raise, just because they showed up for work, right? After all, the contract expired, so they would just be entitled to a maintenance of current wages?


In the wildly erratic world of Pennsylvania teacher contract negotiations, it should come as no surprise that the end date of a Collective Bargaining Agreement could mean the difference between potentially saving millions of taxpayer dollars while negotiating a successor Contract versus paying out raises across the board while losing complete bargaining leverage in the process. We give you the dangers of an August 31st expiration date for your Collective Bargaining Agreement.


What’s more maddening is the unsettling guidance from Pennsylvania Arbitrators on this very issue.


In Ringgold School District v. Ringgold Education Association (2005), Arbitrator Talarico opined that the Agreement clearly showed the parties bargained for a separate salary schedule for each year and stated:  "More importantly, salary increases beyond five school years specifically covered by the expired Contract were neither bargained for nor contemplated by the parties."  Therefore, the arbitrator held that the employees were not entitled to vertical salary step movement on the Collective Bargaining Agreement.


On the other hand, the more recent Northwest Area Education Association v. Northwest Area School District decision from Arbitrator John Skonier explicitly holds that if a school district starts a teacher's work year prior to the expiration of the prior Contract, step and column movement would be triggered.  This is the opposite of the Ringgold decision. Arbitrator Skonier’s decision was later affirmed by the Pennsylvania Commonwealth Court.


If August 31st is the terminal day of your contract you may be facing a salary increase and not even know it.


The Third Circuit Court of Appeals has now ruled in two cases I discussed in a previous blog entry about disciplining students in school for out of school speech. Both cases, Layshock v. Hermitage School District and J.S. v. Blue Mountain School District involved students who created fake MySpace profiles of their school principals outside of school that contained false and, at the very least, suggestive information about the principals. However, in one case the Court found disciplining the student was allowed, but in the other it violated the student’s First Amendment rights. The Court focused in both cases on the issue of substantial disruption in the school setting or the potential for the same. 

In Laystock, the Court found it particularly concerning that a school should be able to discipline a student for speech that occurs outside of the school setting, and found no evidence in the case to establish that there had been a substantial disruption in the school setting as a result of the profile. Interestingly, it is not suggested in the opinion that the school believed a substantial disruption was likely to occur if it failed to act.  The Court found that the school could not discipline as there was no substantial disruption.


In J.S., the information contained in the profile was more vulgar than in Laystock and there was testimony that there was “a severe deterioration in discipline” in the school. The Court notes that the actual disruption was not sufficient itself to justify the discipline, but rather the immediate effect the profile had in the school setting and that a substantial disruption was reasonably foreseeable if the school did not act based upon what had been seen to date did. Accordingly, the Court found that discipline was permitted.   


Thus, it appears that discipline may be given for out of school speech if that speech causes a substantial disruption in the school setting or if school officials can explain what they saw was happening and show that if they failed to act, there would likely be a substantial disruption.