1. But Wait … There’s More!
Bargaining Considerations for Non-Teacher Professionals and Support Contracts
Presented by:
Kevin T. Sutton
Lusk Albertson PLC
Detroit – Grand Rapids

2. Overview Who are we talking about?
What legal standards should we be concerned with?
What opportunities do we have?
How can we seize those opportunities?
What other things should we be aware of?

3. Who? Non-Teacher Professionals Support Staff Occupational Therapists
Physical Therapists
Speech and Language Pathologists
School Social Workers
School Psychologists
Other Non-Instructional Support
Support Staff
Paraprofessionals
Bus drivers
Lunch aides
Administrative Assistants

4. But Who? Assumptions not enough Common sense (sometimes) not enough
Have to look beyond assumptions
“Can’t judge a book by its cover”

5. Subcontracting for Support Services

6. Contracting Out Support Services
MCL (3)(f) declares the following to be a PSB:
The decision of whether or not to contract with a third party for 1 or more non- instructional support services; or the procedures for obtaining the contract for non- instructional support services other than bidding described in this subdivision; or the identity of the third party; or the impact of the contract for non-instructional support services on individual employees or the bargaining unit.
However, this subdivision applies only if the bargaining unit that is providing the non-instructional support services is given an opportunity to bid on the contract for the non-instructional support services on an equal basis as other bidders

7. Pontiac School District v Pontiac Educ Assoc
295 Mich App 147; 811 NW2d 64 (2012)
School District unilaterally contracted out for OTs and PTs claiming that they were non-instructional support
Union filed ULP claiming SD had bargaining obligation before subcontracting
MERC/COA found for Union
“Positions in which individuals impart knowledge or information to students are subject to collective bargaining under MCL (3)(f)”
In other words, the definition of “non-instructional support” according the COA was not whether individuals were supporting instruction, but whether the support itself was one that provided instruction
Even if not curricular in nature (ex: PTs)

8. Reese Public Sch Dist v Reese Professional Support Personnel Association MEA/NEA
COA Case No (2014)
Issue was whether SD could unilaterally contract out for secretarial services
Relying on Pontiac, COA held “[t]he crucial issue in this case is whether the secretaries’ duties involved support that imparted knowledge or information to students”
Because they did not, Court held they were non-instructional support
Dissenting judge thought supporting instruction should be enough under the language of the statute

9. Port Huron EA v Port Huron Area SD
COA Case No (Feb 16, 2016)
As a cost saving measure, the District elected to contract with its ISD for school psychologists to service the District’s special education students
Decision was made during term of a CBA and was not bargained
Union filed unfair labor practice charge claiming that District acted in bad faith by subcontracting instructional support services without bargaining
What Did They Hold?

10. Port Huron EA v Port Huron Area SD
No unfair labor practice
Relying on section 1751 of the Revised School Code, the Court held (upholding the decision of the MERC) that the decision to contract with the ISD for services is an educational policy decision that is within the School District’s management prerogative
Implication?
Avoided the PERA and went to the RSC

11. To Bid or Not To Bid . . . Is it cost-effective to bid out services?
Short-term and long-term considerations
Dwindling savings over time?
Discussions with people in industry
Is it worth the loss of control over those employees?
Benefits
Downsides

12. Reminders If you seek bids you MUST give union the opportunity to bid
May still bargain while going through RFP process
Would RFP process result in important leverage v. would it just cause a firestorm in your community
Just because a group is “instructional support” does not mean you can’t subcontract, it just means you have an obligation to bargain

13. Other Opportunities

14. Assessing the Playing Field
Fewer Prohibited Subjects
More to talk about
Lack of Evaluation Tool Requirement
District decision on what to have or whether to have anything
If going to have, must bargain
Termination Standard
Use absence of legal standard to leverage desired outcome
Try to get one consistent standard for everyone?

15. Teachers v. Support Personnel
Different Motivations?
Teachers – more money, less work
Support Staff – increase hours/work, more job security
Support Staff
Tend to look more at “pennies and dimes” – Ex: Bonus for Good Attendance
Purchasing for pennies on the dollar – Ex: Elimination of Sick Bank

16. Opportunities Remove “just and reasonable cause” language
Move away from teacher evaluation tool
Cleaning-up ”The Appendix”
Try to remove items that were cut and pasted into a separate article for non-teacher support personnel after the law changed
Not always issues that are faced by non-teachers
But union did not want to change anything
Better perspective with time?

17. Pushing the Limits Get Experimental Why? Feasible?
Higher tolerance for change
Test Lab
Insurance
Pay Structures
Why?
Feasible?

18. Other Thoughts Dismantling of ACA Bus Drivers
Move to Hard Cap if Haven’t Already?
Bus Drivers
Calculation based on routes or hours?
FLSA implications

19. War Stories

20. Questions? Kevin T. Sutton KSutton@LuskAlbertson.com
(248) – Direct
(734) – Cell