Legal Update Oct 09 by oM9Rn9L8


									                  Legal Update
                  Volume 9, No. 11                               October 1, 2009

                          Produced by Michael Dahlem, Esq.
                         14 Green Place, Whitefish, MT 59937
                Phone/Fax: (406) 862-2430 E-mail:

        Hearing Officer Gregory Hanchett has held the Laurel School District committed an
unfair labor practice when it unilaterally increased the assigned teacher-student contact time at two
schools without first bargaining with the Association to impasse over the impact those changes
would have on their teachers‟ unassigned teaching time. The hearing officer found that after the
completion of negotiations on the 2008-2011 collective bargaining agreement, and prior to the com-
mencement of the 2008-2009 school year, the school district decided that it needed to increase the
amount of assigned student contact time between its teachers and students. It did so by extending
the class start times and end times at both the Graff School and the Laurel Middle School. At Graff,
third grade teachers lost 15 minutes per day or 75 minutes per week in unassigned time. Fourth
grade teachers lost 30 minutes per day or a total of 135 minutes per week. At the Laurel Middle
School, teachers lost 17 minutes per day or a total of 85 minutes per week. In holding that the
school district committed an unfair labor practice, Hanchett wrote that:

       The impact of the changes here upon the teachers‟ schedules is a mandatory subject
       of bargaining. . . . In fact, the principles of Bonner demonstrate that the substantial
       change in the teachers‟ previously understood unassigned prep time . . . was a change
       in the terms and conditions of employment, the impact of which upon the teachers
       was subject to bargaining unless waived either by past bargaining history or by the
       language of the 2008-2011 CBA itself. . . .

       As the impact of the schedule changes was a mandatory subject of bargaining, the
       school district is relegated to arguing that the Association waived its right to bargain
       over this issue. A waiver can occur either by express provisions in the CBA, by the
       parties‟ bargaining history, or by a combination of both. . . . The school district must
       prove the waiver. An express contractual waiver must be “explicitly stated, clear and
       unmistakable.” . . . In order to demonstrate a waiver by bargaining history, the matter
       at issue must have been “fully discussed, and consciously explored during negotia-
       tions and the union [must] have consciously yielded or clearly and unmistakably
       waived its interest in the matter.” . . . Taken as a whole, the evidence in this case
       does not support the school district‟s argument either that the language of the
       2008-2011 CBA constitutes a waiver of the right to bargain over the impact of the
       reduction of the unassigned time or that past negotiations demonstrate a waiver of
       the right to bargain over the impact. . . .

The school district‟s argument that the management rights clause and integration
clause constitutes a waiver is unpersuasive. As the Association correctly notes, the
National Labor Relations Board has consistently rejected management rights clauses
that are couched in general terms and make no reference to any particular subject
area as waivers of statutory bargaining rights. . . . The management rights clause in
the 2008-2011 CBA does not authorize the school district to make unilateral changes
in conditions of employment without collective bargaining and, therefore, does not
demonstrate a waiver.

The hearing officer also agrees with the Association that the effect of the zipper
clause in this case is to protect employees from unilateral changes in working
conditions. By agreeing that one party cannot force another party to bargain, the
parties have agreed to maintenance of the status quo. An employer cannot implement
a unilateral change in working conditions and then use the zipper clause as a sword
to justify its refusal to discuss a unilateral change in the status quo. . . . An agreement
that neither party is obligated to bargain is a double-edged sword. It applies to both
parties and because neither can be forced to bargain, neither can force the other to
accept a change in the status quo. . . .

Likewise, nothing in the bargaining history of the parties suggests a clear and
unmistakable waiver of the mandatory bargaining subject at issue in this case. The
school district‟s contention that the lack of the inclusion of an ad hoc committee into
the 2005-2006 CBA somehow shows a waiver is unconvincing. As the Association
aptly points out in its post-hearing responsive brief, there is nothing but purest
speculation in the record as to why that ad hoc committee was not included in the
final CBA. More importantly, even if the reasons were known for not including the
ad hoc committee, there is no way to know what the ad hoc committee might or
might not have done had it come into existence. The deletion of the ad hoc
committee from the 2005-2006 CBA negotiations does not plainly and unmistakably
show that the Association waived its right to bargain over the impact of the changes.

The changes in the 2005-2006 CBA which resulted in changing the beginning of the
teachers‟ workday from 8:15 a.m. to 8:00 a.m. does not clearly point to a waiver. At
most, it signifies that the teachers agreed to begin their contractual day at 8:00 a.m.
and nothing more. It does not at all speak to whether the teachers gave up their right
to bargain over the impact of the addition of assigned teacher-student contact time.

Finally, to suggest that the past practice of soliciting input from individual teachers
somehow waives the right of the Association to bargain flys [sic] in the face of the
very principles underlying collective bargaining. Here, there is no indication that the
teachers‟ acknowledged representative, the Association, either explicitly or tacitly
condoned such input as a substitute for the power of the Association to bargain on
behalf of the teachers. Also, as the Association correctly notes, in order to be waived,
the issue must have been fully discussed and consciously explored during negotiate-
ions. . . . Any input received from the teachers was individual input which was not
       received in negotiations. To permit the school district to prevail on this argument
       would result in an “end run” around the purposes of the public employees collective

       In sum, the school district has failed to meet its burden to show that either the
       language of the 2008-2011 CBA or the bargaining history of the parties demonstrates
       that the Association waived its right to bargain over the mandatory subject of the
       impact of the increase in assigned teacher-student contact time. The Association has
       thus proven the unfair labor practice charges against the school district.

       Laurel Unified Education Association, MEA-MFT v. Yellowstone County School District
Nos. 7 & 70, ULP Nos. 6-2009 and 8-2009 (Aug. 14, 2009).

                          FEDERAL CIRCUIT COURT CASES
        The Tenth Circuit Court of Appeals has held that a function that is rarely required in
the course of an employee‟s job duties may still be an essential job function under the ADA. The
plaintiff was a physician‟s assistant at a State prison and her job required inmate contact. After an
altercation, the State added a physical safety training requirement to its medical positions. The
employee, who suffered from a variety of ailments including lupus, fibromyalgia and Sjogren‟s
syndrome, was physically unable to complete the training. The State offered her another position
but she refused and was discharged.

        The employee filed suit under the ADA, alleging a refusal to reasonably accommodate her
disabilities. The circuit court disagreed, affirming summary judgment for the State. It held that the
physical safety training requirement was essential to the employee‟s job duties and that she failed to
show that a reasonable accommodation was possible. According to the court:

       Reasonable accommodations may include “job restructuring, part-time or modified
       work schedules, reassignment to a vacant position, acquisition or modification of
       equipment or devices, appropriate adjustment or modifications of examinations,
       training materials or policies, the provision of qualified readers or interpreters, and
       other similar accommodations for individuals with disabilities.” … [The plaintiff‟s]
       proposals must fail. Whether one calls it waiver, grandfathering, or a superficial
       change in title, [the plaintiff] is requesting that [the state] eliminate an essential job

       Hennagir v. Utah Department of Corrections, No. 08-4087 (10th Cir. Sept. 10, 2009).

        The Second Circuit Court of Appeals has held that an employer may liable for an
independent contractor‟s act of discrimination. The employer, a real estate owner, hired an inde-
pendent contractor who interviewed the plaintiff for a job showing apartments. The contractor
allegedly told the plaintiff that he was “too old” for the job. The Second Circuit allowed the
plaintiff‟s suit to go forward against the employer, stating: “By its terms, employer liability under
the ADEA is direct: an employer may not „fail or refuse to hire … any individual … because of
such individual‟s age.‟ 29 U.S.C. 623 (a)(1). That prohibition applies regardless of whether an
employer uses intermediaries, such as independent contractors, to fill that role.” The circuit court
further noted that the plaintiff submitted evidence that the interview took place at the employer‟s
offices and that he was told the employer was looking for someone younger. Halpert v. Manhattan
Apartments, No.07-4074-CV (2nd Cir. Sept. 10, 2009).

         The Ninth Circuit Court of Appeals has held that a designated Protection and Ad-
vocacy (P & A) agency is entitled to contact information for the parents and guardians of special
education students in order to investigate allegations of past abuse by a teacher and aide who no
longer worked for the school district. In reversing a federal district court, the Ninth Circuit panel
held that the Developmental Disabilities Assistance and Bill of Rights Act created a limited
exception to FERPA, entitling a P&A agency access to the information in order to allow it to carry
out its responsibility to investigate abuse or neglect. The court also held that this right was not
limited to investigations involving current or ongoing allegations of abuse or neglect and that the
district court erred in awarding attorney fees to the school district pursuant to a state rule of civil
procedure. Disability Law Center of Alaska, Inc., v. Anchorage School District, No. 08-35057 (9th
Cir. Sept. 9, 2009).

        The Ninth Circuit Court of Appeals has held that a school district superintendent did
not violate a student‟s First Amendment rights when she prohibited the student from performing an
instrumental version of “Ave Maria” at her high school‟s graduation ceremony. The school district
had received complaints about the performance of religious music at a previous graduation cere-
mony and the superintendent said she made her decision in order to avoid a possible violation of the
Establishment Clause. While the circuit court did not hold that the performance of “Ave Maria”
would violate the Establishment Clause, it concluded that “when there is a captive audience at a
graduation ceremony, which spans a finite amount of time, and during which the demand for equal
time is so great that comparable non-religious musical works might not be presented, it is
reasonable for a school official to prohibit the performance of an obviously religious piece.” It
further stated that the district‟s action in keeping all musical performances at graduation “entirely
secular” was reasonable in light of the circumstances surrounding a high school graduation. Nurre
v. Whitehead, No. 07-35867 (9th Cir. Sept. 8, 2009).

                         FEDERAL DISTRICT COURT CASES
        A federal district court in New York has held that a school social worker could pursue
a First Amendment retaliation claim under 42 U.S.C. § 1983 based on statements she had made to a
newspaper reporter and the police about the possible sexual abuse of a student by a teacher. The
court concluded that the social worker‟s speech was protected because her statements were made as
a private citizen on a matter of public concern, rather than as part of her official duties. The social
worker was reprimanded and subjected to several adverse employment actions, including denial of a
counseling position, after she reported inappropriate statements by an English teacher to a student.
When a reporter from a local newspaper contacted the social worker asking for a comment on a
police report, she told the reporter that the report filed by a school resource officer contained a
number of false statements, including one stating that she had reported her concerns earlier than she
actually had.
        After the suit was filed, the school district filed a motion to dismiss on the ground that
speech made by an employee in the course of her official duties is not entitled to First Amendment
protection the speech pursuant to the U.S. Supreme Court‟s holding in Garcetti v. Ceballos, 547
U.S. 410 (2006). The district court denied the motion to dismiss, holding that the social worker‟s
statements about the alleged sexual abuse of the student were protected speech because they were
made as a private citizen on a matter of public concern to uncover fraud and misstatements by
school officials. While conceding that her report to the principal was made pursuant to her official
duties, the court pointed out that her subsequent statements to the police and a reporter, and her
Freedom of Information request, were not made pursuant to her official duties. McAvey v. Orange-
Ulster BOCES, No. 07-11181 (S.D. N.Y. Aug 28, 2009).

                         MONTANA DISTRICT COURT CASES
        Oral argument has been scheduled for October 13, 2009 at 3:00 p.m. before First
Judicial District Court Judge Jeffrey Sherlock in a case involving the definition of a statutory super-
visor under Section 39-31-103 (11), MCA. In 2008, the Montana Board of Personnel Appeals held
that unit sergeants employed by Montana State Prison are statutory supervisors, but that case
managers are not. This decision was appealed by both the MEA-MFT and the Prison and the district
court‟s interpretation of the statute may play a major role in future unit determination and unit
clarification cases. I have been retained by the Montana Department of Administration to represent
the Prison and Karl Englund, the attorney who represented the Bonner Education Association in an
unfair labor practice decided by the Montana Supreme Court, represents the MEA-MFT. The oral
argument is open to the public and I would encourage anyone interested in these matters to attend.
MEA-MFT v. Montana Department of Corrections, BVD 2008-1042.

                             OTHER STATES COURT CASES
       The Texas Supreme Court has held that a plaintiff may not examine e-mails of a defen-
dant‟s employees without demonstrating a reasonable likelihood that the proposed search metho-
dology will yield the information sought. The plaintiff in a contract dispute made a discovery
request for a broad variety of e-mails from a defendant, who produced some e-mails, but claimed
that many others had been deleted. The plaintiff then sought to have experts access the defendant‟s
computer to create forensic images of the hard drives and then search the images for the deleted e-
mails using specified search terms. The state supreme court denied the plaintiff‟s request, stating:

       [The plaintiff‟s] conclusory statements that the deleted e-mails it seeks „must exist‟
       and that deleted e-mails are in some cases recoverable is not enough to justify the
       highly intrusive method of discovery the trial court ordered, which afforded the
       forensic experts „complete access to all data stored on [the defendants‟] computers.‟

       The missing step is a demonstration that the particularities of [the defendant‟s] elec-
       tronic information storage methodology will allow retrieval of e-mails that have been

       deleted or overwritten, and what that retrieval will entail. A complicating factor is
       the some two-and-a-half years that passed between the time any responsive e-mails
       would have been created and the time [the plaintiff] requested them. Under these
       circum-stances, it is impossible to determine whether the benefit of the forensic
       examination the trial court ordered outweighs the burden that such an invasive
       method of discovery imposed.

       In re Weekley Homes, No. 08-0836 (Tex. Aug. 28, 2009).

         The North Carolina Supreme Court has held that an employee who accepted an early
retirement package in a reduction in force is not eligible for unemployment insurance benefits. The
employee opted for a voluntary early retirement package as part of a company-wide downsizing.
After retiring, his application for unemployment benefits was denied by a state commission. Under
a state statute, a worker who leaves work without good cause is disqualified from receiving benefits.
An appeals court found he was eligible for benefits. But the state supreme court held that the early
retirement program did not constitute “good cause.” According to the court:

       [The employee] left work even though continued work was neither logistically
       impractical nor intolerable. … Further, [the company]‟s offer of an early retirement
       package did not in any way affect the quality of the position [the employee] occupied
       when he left work. [He] presented no evidence that the program‟s existence created a
       hostile or unpleasant work environment, or somehow negatively affected the quality
       of the work itself. Thus, the retirement program does not constitute „good cause‟ for
       the separation.

       North Carolina Power & Light v. Employment Security Commission, No. 441A08 (N.C.
Aug. 28, 2009).


        The Montana Rural Education Association, in conjunction with the Montana Petrol-
eum Association and the Montana Taxpayers Association, is sponsoring a two-day conference in
Billings on October 15 and 16, 2009 focusing on K-12 funding and natural resource development in
Montana. The conference will be held at the Billings Petroleum Club, on the 22nd Floor of the
Crowne Plaza Hotel. The keynote speaker will be former U.S. Senator Conrad Burns and other
speakers include Terry Johnson, Principal Fiscal Analyst for the State of Montana; Dave Ballard,
President of Ballard Petroleum Holdings LLC; ,Curt Nichols, Longtime State Budget Analyst; Leo
Heath, Professor, Montana Tech, Butte; and Rich Batterman, MREA Chief Legal Counsel. Rich‟s
presentation is entitled: “Stormy Weather! Recent Legal Cases and the Challenges Facing Montana
Schools.” He will offer a survey of recent legislation and litigation affecting Montana schools
including the Bonner, Frazer and Good Schools Missoula cases. You can register for the conference
on-line at The registration charge is $75 for MREA members and $100 for non-


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