Supreme Court Rejects School District Appeal

May 22, 2015

by Barbara O’Brien

The New Hampshire Supreme Court has decided not to hear an appeal made by the Windham School District in regard to the establishment of “director positions,” with all five Supreme Court Judges agreeing that the case has no merit.  If even one of the judges had felt the appeal had merit, it would have moved forward.

The Supreme Court’s decision not to hear the appeal comes after a year-long legal battle between the Windham Education Association and the Windham School District.  The original complaint, which was heard by the Public Employees Labor Relations Board last year, claimed that the school district was committing an unfair labor practice by creating directors; employees who are not a part of the union.  The labor board’s decision, subsequently, came down in favor of the Windham Education Association.

The controversy is not over, however, as a second “parallel issue” remains unanswered.  That second issue asks whether these directors are administrators or teachers.  Teachers are union members; administrators are not.  Under the current school district plan, however, directors are doing both teaching and supervising other teachers.

To provide some background information on what has transpired during the past 13 months, here is a synopsis of the situation.  On April 4, 2014, the WEA filed an unfair labor practice complaint against the Windham School District claiming that the school district (SAU 95) violated State Law (RSA 273-A; a, e and g) by creating six director positions and assigning work currently performed by bargaining unit employees (deans) to those director positions.  The newly created director positions are not a part of the bargaining unit.  The dean positions were included in the bargaining unit.  In its complaint, the WEA is also claiming that the school district is changing the duties of bargaining unit employees (deans) without performing any bargaining.

Under the school district’s current plan, all dean positions have been eliminated and are being filled by directors.  The six directors include: music, language arts, social studies, mathematics, science and guidance.  Four of the deans were replaced with directors at the beginning of the 2014-2015 school year, while the two remaining deans are to be replaced with directors this spring.

The existing three-year WEA contract runs from July 1, 2014 through June 30, 2016.  It was approved by voters in March of 2014.  According to statements submitted to the Public Employee Labor Relations Board, last April, the WEA claims that the new director positions are “substantially similar to the deans and, therefore, should be included in the bargaining unit.”

As a result, the WEA requested that the Public Employee Labor Relations Board issue a cease and desist order, ruling that the Windham School District may not unilaterally remove bargaining work and may not change the duties of existing bargaining employees without going through the bargaining process.

The Windham School District administration does not agree, however, denying the charges lodged by the Windham Education Association.  The school district contends that the establishment of the director positions is a change in organizational structure and within the school district’s prerogative to do so.  The school district asked that the complaint issued by the WEA be dismissed by the labor relations board.  School district attorney Michael Elwell said that the school district is willing to negotiate over the impact of the “reorganization.”  However, WEA attorney James Allmendinger said his client is not willing to negotiate under these terms, preferring to remain with the original complaint; denying that the school district’s plan is a permissible reorganization.

The first hearing on the issue was held in Concord on June 5, 2014.  Post-hearing briefs were filed by both parties on July 2.  A decision by the Public Employee Labor Relations Board was issued this past October.  According to that decision, the Windham School District did commit an unfair labor practice when its administrators unilaterally removed “subject positions” from the bargaining unit.  According to this decision, therefore, the Windham School District must negotiate any alterations in the terms or conditions of employment that changed teaching positions to administrative roles and, thereby, removed them from the collective bargaining agreement.

According to the labor relations board ruling, late last year, “the school district’s unilateral change in a term or condition of employment destroys the level playing field necessary for productive and fair labor negations” and is, therefore, a violation of State Law.  “The Windham School District shall cease and desist from refusing to negotiate the terms of employment for deans/directors,” read the decision.

Despite the Public Employee Labor Relations Board decision, however, Windham School District administrators have maintained that the collective bargaining agreement has not been violated and they continue to argue that the directors are “new positions” and not a reassignment of the former deans’ duties and responsibilities.  It was on March 17 of this year that members of the Windham School Board voted unanimously to appeal the decision to the New Hampshire Supreme Court.  At last report, the school district had spent more than $37,000 pursuing this case before the labor board.

The most recent hearing before the Public Employees Labor Relations Board was held on March 9 of this year.  The discussion conducted during that hearing pertained to “whether directors are to be included in or excluded from the recognition clause in the teacher contract.  In other words, Are they teachers or are they administrators?  Although it has been more than two months since the March hearing, Superintendent Winfried Feneberg said he has not yet been informed of any decision.

John Hayward, president of the Windham Education Association, said he is very pleased with the Supreme Court’s decision not to hear the school district’s appeal as to whether or not it had committed an unfair labor practice by creating the new director positions.  “It validates the Windham Education Association’s position and the labor board’s ruling,” Hayward said.

Hayward, who teaches at Windham Middle School, has just begun his second year as the Windham Education Association’s president.  “I met with the school board on March 5, and gave them the WEA’s side of the story,” Hayward said.  The non-public session lasted approximately 30 minutes.  Hayward said no comments were made or questions posed by school board members.  Hayward also said he was recently contacted by Superintendent Feneberg for the purpose of negotiating the impact of the director positions on members of the Windham Education Association.”  I look forward to having meaningful and open discussions with him,” Hayward said.