For Plaintiff: Timothy M. Bliss, Esq.
For Defendant: Carly B. Iafrate, Esq.
This dispute involves an appeal by the Warwick School Committee (WSC or employer) from a decision by the Rhode Island State Labor Relations Board (the Board). In this appeal, properly before the Court under the Administrative Procedures Act (APA), the Court must address the issue of whether it is an unfair labor practice for the WSC to require teachers to record grades electronically, rather than continue the existing practice of recording grades manually, using pen/pencil entries in a paper gradebook. Jurisdiction in the Court is pursuant to G.L. 1956 §§ 28-7-29 and 42-35-15.
Facts and Travel
The Warwick Teachers' Union, Local 915, AFT (the Union) and WSC have been collective bargaining partners since at least 1970. The instant dispute arises out of a disagreement concerning a directive, issued by WSC through the Superintendent of the Warwick Public Schools (WPS), which required WPS teachers to record and maintain grades by way of electronic entries in a computer. This directive led to the Union filing an unfair labor practice charge against WSC on August 16, 2013. The following facts are derived from testimony presented at two hearings before the Board, on April 8, 2014 and May 13, 2014, and are undisputed on appeal.
At all relevant times prior to the events leading to this appeal, it has been the consistent practice of WPS teachers to maintain a running account of grades by way of written entries in a paper gradebook. This practice appeared to be of no great controversy prior to 2010. In the Matter of R.I. State Labor Relations Board and Warwick Sch. Comm., at 2, Case No. ULP-6115 (Decision and Order, Nov. 12, 2014) (hereinafter Decision). In 2010, however, WSC purchased a computer program called the "Aspen Student Information System (hereinafter Aspen program)." Id. This program allows the electronic recording of student grades, both interim and final, demographic information, and other data. Id. The Aspen program also allows students and their parents to view grades and other relevant student information through a "parent portal, " which can be accessed via a login and password. Id.
The Union and WSC negotiated collective bargaining agreements in both 2011 and 2012; in both years, WSC sought to require Union teachers to use the grade- recording features of the Aspen program. Id. at 3. The Board noted that WSC sought to replace existing contract language regarding the recording of grades by paper entries with language requiring recording grades electronically. The previous language read: "[g]rade reporting sheets in the secondary schools shall be made available to teachers two (2) school days prior to the close of each marking period and shall be due in the main office of each school on the third (3rd) school day after marks close." Id. at 2. WSC desired to have this section revised to read:
"[g]rades shall be due in the main office of each school [on] the third (3rd) school day after marks close in accordance with district schedules and requirements. All teachers will enter Student Information System (SIS) related information (as required by the district and in accordance with the calendars established by the district)." Id. at 3.
In both contract negotiations, the suggested language was rejected by the Union. Id. For that reason, the previous language relative to the paper recording of grades was retained in the collective bargaining agreement (CBA) in force at the time of this dispute, which was in effect from September 1, 2012 to August 31, 2014.
In the spring of 2013, WSC determined that implementation of a change in the recording of grades was not a mandatory subject of bargaining. Id. On the final day of the 2012-2013 school year, it communicated the decision to the Union via a memorandum submitted as evidence to the Board. Id. The memorandum makes reference to expected financial shortfalls and WSC's efforts to find savings where possible; the memorandum also makes clear that paper gradebooks will no longer be permitted, and that teachers will be required to use the Aspen program to record grades. Id. at 3-4.
Following this communication, the President of the Union, James Ginolfi, contacted WSC through Rosemary Healey, its Director of Human Resources and Department Attorney, and met with Ms. Healey on July 24, 2013. Id. at 4. At this meeting, the Union raised its objection, stating that implementation of an electronic-only gradebook constituted a mandatory subject of collective bargaining. Id. Further communications did not result in an agreement between the parties. Id. The Union then objected to this change in writing on August 8, 2013. Id. WSC responded to the objection on August 30, 2013, and reiterated its position that the implementation of the change was not subject to mandatory bargaining and was a non-delegable statutory duty of the WSC. Id.
The Union then filed the unfair labor practice charge leading to this appeal. WSC argued three points below: first, that the Union waived its rights to bargain the issue; second, that it has a non-delegable statutory right to implement an electronic grading system as a matter of educational policy; and third, that the implementation of an electronic grading system is a management right under the existing CBA not subject to mandatory bargaining. Id. at 5. The Union responded that it did not waive its rights to bargain and that because no statutory duty can excuse WSC from being subject to mandatory bargaining on a matter affecting the terms and conditions of Union members' employment, WSC committed an unfair labor practice both by refusing to bargain and unilaterally implementing the change. Id. at 4-5.
The Board resolved the unfair labor practice claim in favor of the Union and determined that WSC, by not considering the issue of mandatory electronic recording of grades to be a mandatory issue for bargaining, and by unilaterally imposing this requirement on the teachers of the WPS, committed an unfair labor practice. In deciding in favor of the Union, the Board found that the decision to require electronic grade recording resulted in a "material and substantial change" to the terms and conditions of the teachers' professional employment. Id. at 10. Characterizing the question of mandatory bargaining as the "threshold" issue, the Board noted that Rhode Island public school teachers represented by a Union are entitled to collective bargaining on all terms and conditions of professional employment. Id. at 5; see § 28-9.3-2. Examining the evidence and testimony presented, the Board noted that the Union had concerns regarding the time in which teachers would be required to record grades and further desired to bargain issues relating to a "uniform grading system, " the frequency of grade entry, the duration of grade entry, and access to computers for the purpose of grade entry. Decision at 7.
Citing testimony from Michael Costello (Costello), a teacher at WPS, the Board considered what it referred to as the "physical" aspects of grade recording-the physical manner in which a teacher would be constrained from walking up and down student aisles and recording marks if a paper gradebook was not allowed. Id. The Board further noted Costello's testimony regarding the effects of electronic grade recording in terms of limitations on both his access to the software and his grade entries: Costello testified that he was no longer able to record grades "off-duty" during his downtime without a laptop and internet access, as well as becoming incapable, to some degree, of "round[ing]-up" a grade. Id. at 8. Costello noted, however, that a teacher can adjust grades, but opined that it took "more effort and time to do so." Id.
The Board further cited two "robo-calls" sent out by WSC to teachers. See id. at 9. These calls contained information relating to training on the Aspen program. Id. The Board concluded, based on these phone calls, that teachers were being directed to engage in work-related training and preparation activities during their summer break. Id. Combined with the memorandum issued earlier, the Board determined that WSC had essentially required Union members to engage in more than "limited" training tasks pursuant to its unilateral implementation of the Aspen program.
The Board went on to reject several arguments put forward by WSC. First, it held that the statutory duty argument advanced by WSC was belied by the references to cost savings highlighted in the June 24, 2013 memorandum. Id. at 10-11. The Board determined that the motivation for the policy change was fiscal in nature, rather than being grounded in educational policy, and as such was germane to mandatory bargaining rather than being related to educational policy within the exclusive province of the school committee. Id. at 11. The Board then disposed of an argument that the change was within the management rights of WSC. The Board held that section 12-15 of the CBA covered the use of paper gradebooks and intimated that WSC's prior negotiations on the use of the Aspen program rendered the issue one subject to mandatory bargaining. Id. at 12. Furthermore, the Board determined that the Union did not waive its rights to bargain the issue, having promptly objected in writing to the requirement of the Aspen program gradebook use. Id. at 13. Finally, the Board held that, having determined the ...