PFT Letter Campaign: Our Push to Resume Contract Negotiations

UPDATE (November 17, 2016):
Dr. Hite has sent everyone a reply. Please see below.
It looks like we're really start to annoy them down at 440. Keep up the pressure everyone...
They only way we'll stop is when we get a fair contract!

ORIGINAL POST (October 1, 2016):
The PFT members at Central High School have embarked upon a letter-writing campaign that we hope will set in motion a movement that will be replicated throughout the district. The action itself is a symbol of solidarity designed to urge the School District of Philadelphia to resume contract negotiation talks with the Philadelphia Federation of Teachers.

My letters to Ms. Neff, Mr. Green & Dr. Hite

The idea was the brainchild of Erica Catlin, a fellow member of the Caucus of Working Educators and English teacher at Central:

"We can't let 440 think we don't really care that we've received ZERO pay raises since 2012.  Students have started and finished high school in that amount of time.  

We need to remind them, each time we receive our dismal paychecks, that we are not complacently accepting this forced pay cut that grows sharper each year.  While our bills go up, our paychecks remain frozen.  We can't move forward with our lives when our salaries are stuck.  News outlets are reporting that income is finally growing nationwide.  What about us?

Imagine a flood of letters every two weeks, from all 11,000 PFT employees, arriving at 440 and having to be opened.  Let's gum up the works.  Let's remind the folks at 440, especially anyone who's received a pay raise since 2012 (Hite and his staff), that their raises are coming out of our pockets.  If they want to blame this pay freeze on Harrisburg, then they can forward our letters there."

Over 300 letters from Central alone... Let's do this at EVERY school!

We hope you join the movement and, during your next PD or earlier, print out a copy of each of the following 3 letters and distribute them to every PFT member in your building:

• LETTER TO HITE
• LETTER TO JIMENEZ
• LETTER TO GREEN (We gave him a little extra "shout out" for being the Former SRC Chair)

All you have to do is change the name to your school in the last paragraph, print your name at the bottom, sign it, place it in an envelope, and then drop it in the PONY mailbox.

Signed, sealed, delivered... PONY to the next stop at 440 N. Broad!

The beauty of this action is that it takes minimal effort and we also don't have to pay for postage because, as long as we keep our letters professional, we are simply asking a question from a School District employee to an School District employer - exactly what the PONY system was designed to do. Also, because there might be a letter of importance somewhere in the mountain of correspondence, every letter MUST be opened either by Hite, Jimenez, Green, or one of their assistants.

So, let's all join in solidarity - all 11,000 members of the Philadelphia Federation of Teachers - in order to flood 440 North Broad Street with thousands of letters and "gum up the works" until they GIVE US A FAIR CONTRACT!

Forcing the SRC to Pay for Lost PFT Wages (PART II)

(This entry is the second in a series. If you have not read my previous Forcing the SRC to Pay for Lost PFT Wages then please do so now, seeing as this entry will not make sense without that relevant information.)

Here is the PFT contract negotiating team's response as to why they are not pursuing the legal course of action laid out in my first blog post:

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Setting the Record Straight: PA Supreme Court Ruling on Act 696, Step Raises and Lane Changes

It appears that there is incorrect information circulating concerning this week’s decision of the Pennsylvania Supreme Court and its impact on step raises and lane changes. The PFT feels that it is harmful to our members to have--and spread--incorrect information, so we want to set the record straight.

The law in Pennsylvania has long-established that a public employer has no obligation to pay step and longevity increases after a contract hiatus, i.e., the period of time after a collective bargaining agreement (CBA) expires, but before the parties reach a new successor agreement. In Fairview School District v. Unemployment Compensation Board of Review, 499 Pa. 539, 454 A.2d 517 (1982), the PA Supreme Court first declared that a public employer’s obligations during the status quo do NOT extend to providing step increases during a contract hiatus.

Similarly, our Commonwealth Court held that public employers have no legal duty to pay longevity increases after a CBA expires. Pennsylvania State Park Officers’ Association v. Pennsylvania Labor Relations Board, 854 A.2d 674 (Pa. Cmwlth. 2004), appeal denied, 582 Pa. 704, 871 A.2d 194 (2005).

Subsequent decisions by our courts have reaffirmed these holdings. See AFSCME District Council 47 v. City of Philadelphia, 53 A.3d 93 (Pa. Cmwlth. 2012); Neshaminy Fed. of Teachers Local Union 1417 v. PLRB, 417 A.2d 837 (Pa. Cmwlth. 2008). In fact, no Pennsylvania court has ever held that step and longevity increases are still required during a contract hiatus. Nor has anyone taken the novel position that the Public School Code requires a public school district to pay step and longevity increases after contract hiatus based on the Public School Code. This is true despite the fact that our appellate courts have repeatedly addressed what are the requirements for public school districts regarding step and longevity increases after a CBA expires.

While the PFT would certainly be thrilled if the Court's decision required the School District to implement the step increases and lane changes, it simply does NOT do that.

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While I agree that no Pennsylvania court has ever given labor union step and longevity increases during a contract hiatus, public school teachers are in a group all of their own. All labor unions in Pennsylvania must abide by the laws and decisions set forward by the Public Employe Relations Act (1970), or PERA. However, public school employees also have legal recourse under the Pennsylvania School Code.

All of the court cases listed above by the PFT's contract negotiating team are cases that have been decided under the purview of PERA or other laws - BUT NONE HAVE BEEN DECIDED USING THE PA SCHOOL CODE. While the PFT's contract negotiating team claims that my approach is a "novel approach" that has never been taken, I ask, "So what?" 

It is time to test uncharted legal waters.

The most important case cited above in the official PFT response, Fairview School District v. Unemployment Compensation Board of Review, 499 Pa. 539, 454 A.2d 517 (1982) is vital in that it carries the authority of the PA Supreme Court, the highest court in the commonwealth. It states "that the School District's refusal to pay stepped up salaries did not constitute a disruption of the status quo." While that case bases its decision on the Pennsylvania Unemployment Compensation Law (1937), NOT THE PA SCHOOL CODE, it is also important to note that there was a dissenting opinion. Justice Larsen, in going against the majority opinion, stated, "I would hold that teachers working under the extended agreement were entitled to compensation commensurate with their years of service, and that the school district's failure to increase the teachers' salaries to reflect an additional year of service constituted a refusal to maintain the status quo."

Seeing as we just worked so hard as a union to get three Democratic judges elected to the PA Supreme Court - judges who have shown they are friendly to labor and more than likely to agree with that dissenting opinion - isn't it time to bring the matter to the PA Supreme Court's attention once again?

Finally, if the PA Supreme Court's current composition isn't enough to spur our PFT contract negotiating team's legal action in pursuit of our step and degree back pay, THERE IS IN FACT LEGAL PRECEDENT IN USING PA SCHOOL CODE TO OBTAIN BACK PAY. The PA Supreme Court in Mifflinburg Area Education Association v. Mifflinburg Area School District, 555 Pa. 326 724 A.2d 339 (1999) refers to the very same PA School Code section that I referred to in my first blog post entry, Section 11-1142 of the PA School Code. The PA Supreme Court stated in that decision that "the language contained in Section 1142(a) protects professional school district employees from the patent unfairness of disregarding past years of service with the same school district." In fact, Commonwealth Court, the PLRB, and the American Arbitration Association have ALL used the Mifflinburg decision in siding with teachers when it comes to salary placement on step schedules for past experience. 

While, granted, every case is unique - in light of the recent decision eliminating the SRC's power to erase PA School Code, the election of 3 PA Supreme Court justices who are friendly to our cause, and the aforementioned legal precedents of using Section 11-1142 of the PA School Code to obtain salary step adjustments - I believe that it is more than logical to ask the PFT contract negotiating team to instruct our excellent lawyers at Willig, Williams, & Davidson to pursue this course of action in the courts. 

At worst, we lose a court case and are back at square one - frozen salaries for the past four years. 

At best, we make the members of the PFT who have not yet reached Step 11 financially whole. 

Forcing the SRC to Pay for Lost PFT Wages

The decision by the PA Supreme Court to declare null and void any actions taken by the School Reform Commission under Section 696(i)(3) of the PA School Code seems to indicate that PFT members who have gone without a step or degree raise since August 2013 are now entitled to that monetary compensation in full. This is how the state’s highest court instructs the SRC on the final page of its recent ruling:

In summary, we hold that Section 696(i)(3) of the School Code, 24 P.S. §6-696(i)(3), is unconstitutional as it violates the non-delegation rule of Article II, Section 1. Accordingly Respondents’ actions taken pursuant to that provision are null and void, and Respondents are permanently enjoined from taking further action under the authority it confers.

The legality of the “status quo” position that the District has taken in reference to denying PFT members their step and degree increases for the past few years is based on powers granted by Section 696(i)(3) and actions taken by the SRC at their August 15, 2013 meeting. The portion of that meeting that refers to the freezing of the wages of PFT members can be seen below:

RESOLVED, that the School Reform Commission, in order to maintain a thorough and efficient public school system and to provide additional flexibility as a distressed school district of the first class, pursuant to section 6-696(i)(3) of the School Code, hereby suspends the requirements of sections 11-1141 through 11-1153 of the School Code and any applicable regulations, relating to compensation of professional employees with whom the School District has not reached an acceptable collective bargaining agreement, for the period commencing September 1, 2013 through August 31, 2014, with consideration of the need for continued suspension in future school years

The relevant PA School Codes that the SRC suspended in August of 2013 are two: Section 11-1142, referring to mandated annual step increases, and Section 11-1144, referring to mandated compensation for an earned college certificate or Master’s Degree .

Here is the relevant clause (emphasis added) in Section 11-1142 (f) of the PA School Code:

The mandated salaries provided in this section shall be applicable to all professional and temporary professional employes within their respective class. The annual salaries payable under this section for the school year 1968-1969 and each school year thereafter, shall include an annual service increment for service in the school district during the previous school year by advancing the salary of the professional or temporary professional employe at least one full step on the minimum salary schedule or to the step on which he is entitled to be placed by virtue of years of experience within the school district, whichever is higher.

And here is the relevant clause (emphasis added) in Section 11-1144 of the PA School Code:

Any professional employe or temporary professional employe, who, during the term of his employment, shall receive a college certificate or shall earn a Master's Degree, shall, commencing with the next succeeding school term, be entitled to the compensation prescribed for his new status, which shall be at least three hundred dollars ($300) in excess of the annual service increment earned by him during the previous year

Seeing as the powers invoked by the SRC in August 2013 under the authority of Section 696(i)(3) of the PA School Code are now null and void, retroactive step increases and degree raises should be immediately issued to all PFT members as sections 11-1142 and 11-1144 legally come into full force.

However, as any PFT member who has been paying attention is aware, current PFT leadership has consistently stated that, under “status quo” established by case law (notably Neshaminy Federation of Teachers vs. PLRB), we are not entitled to step and degree increases once a contract expires. This FAQ provided by the PFT about lost wages states as much:

Why has the district not honored step raises nor lateral raises (Master’s, Master’s plus 30, etc.)?

Act 46, the State Takeover, permits the SRC to waive sections of the PA School Code.

On August 15, 2013 the SRC voted unanimously (SRC-1 8-15-13 ) to waive sections 11-1141 through 11-1153 of the PA School Code. These sections stipulate minimum salaries, step increments, and additional increments for college certificate or Master’s Degree.

In addition, the PFT contract expired on August 31, 2013. The School District did not agree to extend the contract during negotiations. According to PA state case law, this is known as status quo; whereby the terms of a CBA become frozen during the negotiations process until at which time a new CBA is reached. This has been defined by the courts in many cases such as Coatesville Area School District v. Coatesville Area Teachers' Association and Neshaminy Federation of Teachers vs. PLRB. The Neshaminy case ruled that “…it is now well-established that maintaining the status quo at contract expiration does not include step-up or longevity wage increases.”

It is clear, though, from the aforementioned actions taken by the SRC in August 2013, the authority to forego step and degree wages by the District is due to the SRC’s suspension of PA SCHOOL CODE. The Neshaminy case, which was decided by the lower Commonwealth Court and was never invoked by the SRC, establishes the legality of “status quo” wage freezes under the PUBLIC EMPLOYEE RELATIONS ACT (PERA) but never specifically mentions the authorization of status quo by the PA School Code. In fact, the Commonwealth Court in the Neshaminy decision also mentions other public employees, such as the Pennsylvania State Park Officers, in reaching its decision that public employees are not entitled to annual step increases under status quo. The Commonwealth Court in the Neshaminy decision, however, NEVER MENTIONS THE PA SCHOOL CODE.

In this respect, the Neshaminy union lawyers failed to bring to the lower court’s attention that public school unions are different from other public sector unions in that they have another set of rules that also apply to them – the PA School Code. The School District of Philadelphia’s lawyers, on the other hand, seem to have been more than aware of this fact when they advised the SRC to bypass step and degree wage increases by using Section 696(i)(3) of the PA School Code instead of the PERA legal precedent established in the Neshaminy case.

In light of the recent decision made by the PA Supreme Court, a new path seems to have opened for all PFT members to demand step and degree wages owed. The PFT’s legal team should immediately invoke Sections 11-1142 and 11-1144 of the PA School Code and demand that the union’s members be made financially whole once again.