The new Massachusetts law, Chapter 12 of the Acts of 2010, "An
Act Relative to the Achievement Gap," effective upon enactment on
Jan. 14, 2010, represents a revolutionary restructuring of the
public sector collective bargaining and dispute resolution process
effective in Massachusetts public schools since 1973 (and in Boston
and some other cities, since 1966). The purpose of the new law is
to arrest, reverse and upgrade poor student achievement in
Massachusetts public schools which are designated as
The following is a look at the new collective bargaining and
dispute resolution provisions and the labor relations challenges
created for professionals accustomed to operating under the general
collective bargaining law, G.L. Ch. 150E ("150E").
Comparison with collective bargaining under bankruptcy
or fiscal takeover
We are accustomed to seeing private sector collective bargaining
agreements ("CBAs") rewritten to satisfy creditors during a federal
bankruptcy process; or provisions of public sector CBAs bent when
state law takes fiscal control of a city and turns it over to an
outside financial control panel, as took place a few years ago in
the City of Springfield. However Chapter 12 is the first
Massachusetts law which authorizes a public employer, state
official or a receiver to override the provisions of a CBA not in
furtherance of financial stability, but rather, in this case, in
furtherance of state legislative policy to rapidly upgrade poor
Turnaround plan may supersede prior law and may override
The first event under Chapter 12 is the designation of
underperforming schools. Next, a turnaround plan ("TP") must be
proposed by the superintendent of schools, approved by the
commissioner, and ultimately implemented by the superintendent of
schools (not by the principal who previously was in charge of such
underperforming school, and not by the school committee.)
The law expressly anchors the power to create a TP for an
underperforming school under the laws generally regulating public
schools, except that when the provisions of this section or of
the turnaround plan TP require otherwise, the provisions of this
section or of the TP govern.
Under a TP, the superintendent has the power to alter or modify
one or more provisions of an existing CBA and to force the exit of
personnel from the underperforming school. This explicit statutory
provision supersedes any contrary provision of 150E.
Role of the teachers' union
All the unions representing employees at an underperforming
school have roles under Chapter 12. In this guide, the focus is on
the teachers' union.
These roles include:
- Participation in a local stakeholder group ("LSG") to provide
initial input into the creation of a TP;
- Prior consultation with the superintendent over some, but not
all of the mandatory bargaining subjects which may be included in a
- Collective bargaining with the school committee over the terms
of a proposed TP which alter an existing CBA;
- After a final TP has been proposed by the superintendent to the
commissioner, the right to appeal to change the final TP before it
is adopted by the commissioner; and
- The right to engage in future collective bargaining over
subsequent modifications of the TP and to process grievances during
the period when the final TP is in force.
Local stakeholder group
Before the superintendent creates the TP, he must convene an LSG
of up to 13 individuals to make recommendations as to what shall be
included in the TP, and must consider their recommendations in the
establishment of the TP. The LSG includes:
- The commissioner or designee;
- The chair of the school committee or designee;
- The president of the local teacher's union or designee;
- A school administrator chosen by the superintendent, who may be
the principal, but more than likely will not be the principal if
the principal is being blamed in whole or in part for the
- A teacher from the school chosen by the school faculty;
- A parent from the school chosen by the local parent
- Representatives of applicable state and local social service,
health and child welfare agencies chosen by the
- As appropriate, representatives of state and local workforce
development agencies chosen by the superintendent;
- For elementary schools, a representative of an early education
and care provider chosen by the commissioner of the Department of
Early Education and Care; and for the middle or high schools, a
representative of the higher education community selected by the
- A member of the community appointed by the chief executive of
the city or town.
The recommendations submitted by the LSG to the superintendent
are required to be publicly available immediately upon
Unlike collective bargaining sessions which are bilateral and
conducted in private, the meetings of the LSG are all multilateral
and public. None of the exceptions applicable under the Open
Meeting Law apply to meetings of the LSG.
Management rights which may be included in a
Section (d) of the law lists the "management rights" which the
superintendent may include in a proposed TP after considering the
recommendations of the LSG, including:
- Clause (4): Funding incentive salary increases for teachers and
administrators in underperforming schools; prior consultation
- Clause (5): Expanding the school day or school year or both;
prior consultation not required.
- Clause (8): Altering one or more provisions of any CBA;
prior consultation not required.
- Clause (9): Altering one or more district policies or
practices; prior consultation not required.
No prior collective bargaining; no prior union
Under 150E, an employer is required to commence collective
bargaining when it contemplates a change in any mandatory
bargaining subject, but before it decides to make such
change. The reason is to allow for the maximum union bargaining
input before the employer's decision has hardened. Here, however,
there is no obligation for collective bargaining before the
superintendent issues his recommended TP.
Prior union consultation is a lesser obligation than traditional
collective bargaining under 150E in that it does not contemplate
negotiation to impasse or access to a statutory impasse resolution
procedure. Here, not even prior consultation is required, except
under Clause (4).
Timetable for adoption of a final TP
- Under section (e), within 30 days of receiving LSG
recommendations, the superintendent submits a TP to the LSG, the
school committee and the commissioner, all of whom may propose
modifications to the TP. The superintendent concurrently releases
the TP to the public.
- Within the next 30 days, the LSG, the school committee and the
commissioner submit their proposed modifications, to the
superintendent, which are made public immediately.
- Within 30 days after receiving such proposed modifications, the
superintendent issues a final TP, with or without any of the
- Within 30 days after issuance of the final TP, the school
committee or union may appeal to the commissioner regarding one or
more components of the TP, including the absence of one or more of
the previously proposed modifications.
- Within 30 days after receiving an appeal, the commissioner
issues a final decision on any such appeal. The commissioner may,
in consultation with the superintendent, modify the plan based on
listed statutory standards, or may deny the appeal.
The collective bargaining process under section (g):
Meshing the timing with section (e)
Under section (e), within 30 days of receipt of LSG
recommendations, the superintendent is required to issue his
proposed TP publicly, and the LSG, the school committee and the
commissioner (but not the union) have 30 days to propose
modifications to the superintendent's proposed TP.
The language of section (g), "if after considering the
recommendations of the group of stakeholders," which triggers the
commencement of the bargaining process, is not clearly integrated
with the timetable in section (e).
Reading the two sections together, it would appear that the
superintendent recommends that the school committee and union
commence the collective bargaining process under section (g) at the
same time that he releases his proposed TP to the LSG, the school
committee and the public. If the combined collective bargaining and
dispute resolution process runs its full course, that process would
be completed after the superintendent receives proposed
modifications from the LSG, school committee and commissioner, but
before he issued his final TP.
The superintendent will presumably include the results of the
collective bargaining and dispute resolution process in his final
TP, but the ability of the LSG to respond to the modified TP prior
to issuance would be compromised unless the timetable was further
Section (g) contains no provision requiring the superintendent
to modify the originally proposed TP to include in the final TP a
CBA reached and ratified under section (g). Likewise, there is no
provision requiring the commissioner to accept without modification
a final TP proposed by the superintendent which includes such CBA
or mandating that the commissioner accept any alteration or
modification to the proposed TP. This lack of finality may raise
questions concerning the authority of the school committee to
bargain in good faith for the school district, where the final
authority does not rest with the school committee. See the
discussion under "bargaining in good faith" and "ratification by
the school district."
Scope of collective bargaining
Under section (g), collective bargaining is triggered by a
superintendent's determination that rapid academic achievement of
students at an underperforming school can be achieved
"by altering the compensation, hours and working conditions
of the administrators, teachers, principal and staff at the school
or by altering other provisions of a contract or
collective bargaining agreement…."
Under 150E, if a change in past practice or school policy has an
impact on conditions of employment, a collective bargaining
obligation would apply to such change or the impact of such change,
whether or not the policy or practice was referenced in the CBA.
Here, under section (g), even though such change in practice or
policy is includable in a TP under clause (9) of section (d), it is
not clear whether the bargaining obligation under section (g)
applies when such policy or practice is not covered under the
express provisions of an existing CBA.
Also, it is not clear what the scope of bargaining is under
section (g) if the basic CBA has expired; the parties are
continuing negotiations for a successor CBA; and there is no
agreement between the parties to extend the expired CBA during such
The duty to bargain in good faith
Regarding the duty to bargain in good faith, section (g)
"The bargaining shall be conducted in good faith and
completed not less than 30 days from the point at which the
superintendent requested that the parties begin."
Because of the different bargaining requirements under Chapter
12, good-faith collective bargaining may acquire a different
meaning under section (6) than under 150E. Under 150E, the school
committee is the public employer and designates a bargaining
representative to conduct collective bargaining for the school
district. To the extent that the superintendent of schools is
involved in the bargaining process, it is as an agent of the school
Here, however, under section (g), although the school committee
has retained its traditional responsibility to conduct collective
bargaining for the school district, it appears that, except for
bargaining over salary increases and other cost items, the school
committee is the collective bargaining agent for the
superintendent, rather than visa versa.
The superintendent is in charge of the decision to request the
school committee and union to bargain. The superintendent is
accountable to the commissioner for designing a TP which will be
acceptable to the commissioner as likely to succeed in developing
rapid student achievement. The superintendent may consult with the
commissioner whether or not Chapter 12 expressly requires him to do
Under 150E, bargaining in good faith is conducted under baseball
rules, with extra innings possible, indeed likely, particularly if
the parties reach genuine impasse, and there is no predetermined
time when the bargaining must stop. Here, under section (g), the
duty to bargain in good faith is defined in relation to a time
The concept of bargaining to impasse has basically been
eliminated. Collective bargaining has been reduced to managing the
bargaining time clock in the shadows of policy decisions by the
superintendent in consultation with the commissioner. When the
statutory clock runs out, game over. The main legislative
imperative is more to complete the process and try to quickly
improve student performance at an underperforming school, rather
than to level the playing field between labor and management in
determining wages, hours and conditions of employment.
The time clock forces the parties to choose carefully the
collective bargaining subjects. Because the commissioner ultimately
ends up deciding the outcome, it is more likely than not that the
parties will focus their negotiations on resolving issues
concerning wages and hours generated by the proposed TP, over which
a school committee retains authority, rather than engage in
decision bargaining over subjects which Chapter 12 has removed from
the authority of the school committee.
Jurisdiction of the state's Division of Labor Relations
over the duty to bargain in good faith
Under 150E, the Division of Labor Relations ("DLR") determines
whether a school district or a union engages in a prohibited
practice by bargaining in bad faith. Thirty-plus years of case law
have defined the duty to bargain in good faith over a broad range
of subjects, including: unreasonable insistence on the time and
place for meeting; taking unilateral action to implement a proposal
without having bargained to agreement or impasse; and entering
negotiations without authority to bargain. DLR has broad remedial
power for a violation by an employer, including restoration of the
status quo ante and back pay.
No provision of section (g) removes collective bargaining from
the provisions of 150E which are not in conflict with subsection
(g). Accordingly, DLR retains statutory jurisdiction to enforce the
obligation to bargain in good faith as specified in Chapter 12.
Ratification by the employer school
In traditional collective bargaining, 150E does not mandate
ratification of a CBA, but assumes ratification by the employer as
well as the union. Under 150E, a school committee has the power to
ratify or not, and if it ratifies, the CBA is binding on the school
district. Although section (g) is silent on employer ratification,
the time clock governs. Therefore, if a CBA reached under section
(g) is conditioned on school committee ratification, it needs to
happen within the same timetable as exists for ratification by the
bargaining unit members in the school.
Ratification by the bargaining unit members in the
In traditional collective bargaining under 150E, a settlement of
new contract terms affecting only a small percentage of bargaining
unit members is subject to ratification by the entire bargaining
unit, not just by the sliver of members directly affected.
Additionally, a union constitution and bylaws may mandate
ratification by an entire bargaining unit. Here, under section (g),
a "yes" vote by employees at the underperforming school would
appear to constitute a binding ratification without any vote by
teachers covered by that CBA but employed outside of the
The solution may be for the union to hold two ratification
votes. The first vote would be by the entire bargaining unit, to
determine whether or not there was a union-supported agreement
ratifiable under section (g). With a "yes" vote, the members at the
school would then vote on ratification. With a "no" vote, there
would be no second vote.
Where a union and school committee are able to reach agreement
on a CBA, it may serve their mutual interests to finesse the
ratification issue by dumping the negotiations into the dispute
resolution process, where ratification of a decision is not
required by section (g).
Timing of dispute resolution process
Because there are only 10 business days to complete the
statutory dispute resolution process, the likelihood is that the
parties will try to have the three members of the JRC, including a
conciliator, appointed and ready to work before the 30-day
bargaining period has expired.
Nature of the process; role of conciliator
This dispute resolution process is correctly described as
nonbinding conciliation rather than binding interest arbitration
because of the residual power of the superintendent or commissioner
to alter any agreement reached between a union and a school
committee. However, the process functions more like interest
arbitration than traditional mediation or conciliation.
In traditional mediation or conciliation under 150E, the
conciliator is not a decision-maker, and if the parties fail to
reach agreement, the impasse continues. Here, under section (g), a
conciliator has in his toolbox the possibility of voting with or
against either party and may use that power to press the parties,
just like an interest arbitrator. Pure conciliation depends on the
parties being willing to convey their interests privately to the
conciliator without fear that such disclosures will be used against
them. That dimension is lacking in this hybrid role when the
conciliator may also be the pivotal decision-maker.
Public or private dispute resolution
Under 150E, there are a multitude of prohibited practice cases
where the Labor Relations Commission (the predecessor to the DLR)
held that it is a prohibited practice for a party to insist to the
point of impasse on public collective bargaining sessions.
Section (g) appears to integrate the dispute resolution process
into the collective bargaining process. On that basis, a party
which insists on conducting the dispute resolution process in
public would likely be engaging in bad-faith collective
Role of American Arbitration Association
Section (g) looks to the AAA to maintain a roster of
conciliators "with professional experience in elementary and
secondary education." The statute does not state whether such
professional experience includes prior service as a teacher or
administrator in elementary/secondary education, or school
committee member, as well as prior labor relations experience as a
labor negotiator, mediator or arbitrator. There is no minimum or
maximum number of AAA panelists. Nothing in the statute prevents
the parties from requesting to examine the AAA's list of
conciliators or from jointly requesting a particular person to be
appointed ad hoc to the AAA conciliator panel.
As a practical matter, only a few school districts, mostly
urban, are likely to be exposed to collective bargaining in
underperforming schools, and when it happens, there will be a
continual need for conciliation services. Therefore, the parties in
such school districts may wish to jointly explore in advance who
might serve as their conciliators and present their names to AAA
for inclusion on the AAA conciliator panel.
The dispute resolution process is to proceed "under the rules of
the AAA and consistent with this section." There are currently no
AAA rules for this process.
Written decision; contents; written opinion
There is no specific requirement in section (g) that the
decision be in writing, or in any particular form, or unanimous, or
supported by any opinion showing how the statutory factors (the
positions of the parties, the designation of the school as
underperforming, and the needs of the students) were applied.
At a minimum, the decision should be in writing and should
embrace all of the terms of the CBA, which was reached prior to the
commencement of the dispute resolution process but which failed
ratification. If no CBA was reached prior to the commencement of
the dispute resolution process, the written decision should embrace
all of the issues upon which agreement was reached, together with a
decision on all the issues over which the parties were in
disagreement during the prior collective bargaining process but
which were "decided" by the joint resolution committee.
There is no statutory language requiring that the decision be
accompanied by a written opinion explaining why the decision-makers
accepted or rejected any proposal or how the statutory factors were
applied in reaching the decision. Because of statutory time-clock
restraints, the joint resolution committee may issue the decision
within the statutory time limit and postpone the supporting opinion
until a later date, or elect to issue just a decision, with no
Because a decision by the joint resolution committee functions
as a form of CBA or settlement agreement, it should be signed by at
least two decision-makers.
Grievance processing, CBA administration and collective
bargaining during the life of the TP
Under sections (h) and (i), the superintendent may select an
external receiver to run an underperforming school for up to three
years under a TP. An external receiver has full operational control
over the underperforming school, but the school district remains
the employer of record.
The provisions of a CBA, which were not altered by the TP,
together with the alterations, agreements and decisions of the
joint resolution committee which are incorporated in the final TP,
have to be administered. Because the school committee remains the
employer even after the management of the underperforming school
has been outsourced, the school committee remains responsible for
the processing of grievances and other aspects of CBA
Under section (j), the superintendent or external receiver may
develop additional components of the TP pursuant to sections
(b)-(g). To the extent that such additional components alter one or
more provisions of the CBA, such development may trigger a new
round of collective bargaining and dispute resolution process.
Under section (k), if the commissioner determines that the
underperforming school has failed to meet multiple goals, in the
TP, he can require changes in the TP. If those changes require
further changes in CBAs, this may trigger a further round of
collective bargaining and dispute resolution process.
After a TP expires:
A) School determined to be no longer underperforming:
restoration of altered terms of CBA
Under section (l), when a three-year TP expires, the
commissioner may determine that an underperforming school has
sufficiently improved so that the "underperforming" label may be
removed. It is unclear whether the provisions of CBAs which were
altered by the TP pop back up automatically, as if the alterations
were established with a sunset clause, or whether the expiration of
the TP triggers a re-opener on such altered provisions; or both the
automatic restoration and the re-opener.
At the very least, before the TP expires, collective bargaining
should take place over whether any of the changes which became
effective under the TP are intended to remain in force even though
the TP will have expired.
B) School remains underperforming: New or modified TP;
further alterations of CBA
The commissioner may also determine that the school is still
underperforming; in which case the commissioner may renew the TP
for up to an additional three years, or may create a new or
modified TP, generating another round of collective
bargaining/dispute resolution process with respect to any further
alterations of CBAs.
C) TP failed: school designated as chronically
The commissioner may also determine that the TP failed, and
designate the school as chronically underperforming. In that case,
pursuant to sections (m), (n) and (o), the commissioner is required
to convene a LSG and develop a new TP.
The following language in section (m), clause (7) governs
collective bargaining over limits, suspensions or changes in CBAs
or reductions in compensation and hours proposed by the
commissioner: "… (t)he commissioner may require the school
committee and any applicable unions to bargain in good faith for 30
days before exercising authority pursuant to this clause."
There is no mention of trying to reach a ratified agreement on
the altered CBA or a dispute resolution process.
Section 1K: Underperforming school
A school district may be designated by the Board of Elementary
and Secondary Education as a chronically underperforming district
compared to other school districts. A receiver is appointed to run
the school district and to work closely with the commissioner to
quickly raise student performance.
The statute follows the same process for district as for an
underperforming school: LSG, TP, a 30-day bargaining period,
followed by a dispute resolution process including a district
representative, a union representative and a conciliator appointed
by the AAA. This dispute resolution process is the same as the DRP
in an underperforming school, with one exception. In an
underperforming school, the decision of the joint resolution
committee is effective with only two votes. Here, the decision of
the joint resolution committee must be unanimous on the disputed
issues; else the commissioner decides them.
Summary and conclusion
By putting collective bargaining in underperforming schools on a
time clock and subjecting CBAs to override, the General Court has
made it clear that quickly raising student performance and
eliminating underperforming schools is its highest priority. It
remains to be seen whether the labor management community will rise
to this challenge and find a way to use the revised collective
bargaining process to be part of the solution.
Allan W. Drachman practices as a
labor arbitrator and mediator. From 2003 to 2006, he served as
chairman of the Massachusetts Labor Relations Commission (now
called the Division of Labor Relations). He is serving his second
year as a member of the MBA's Labor & Employment Section