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NTA EBulletin: September 27: Follow up on Ruling on Strike Petition

Dear Colleagues,


(If you haven't already, you should read my previous email outlining the CERB decision on the school committee's strike petitions.)


So what does this ruling from CERB mean?


Well, first of all, it means the school committee spent a whole lot of money--probably tens of thousands of dollars--in legal fees to prove that (1) you were on strike on opening day when you were preparing your classroom for students, and (2) that you are not on strike when you are silent in meetings. Maybe they should have saved their money for funding our contract!


And whatever they say about having a legal obligation to report a work stoppage or strike, the law does not require them to go hunting for strikes or manufacturing them. What this decision makes clear is that the school committee filed these petitions to stop our protected and concerted union work to rule actions.


If you think that maybe the school committee's real job is advocating for fully funding the schools with Mayor Fuller and not wasting money on legal fees, come to the school committee meeting tonight at 6:30 and let them know. Or come to the next meeting on October 11, same time. Let the school committee and the mayor know what you think.


But what do these decisions mean for us, for our organizing?


First of all, they mean stay the course on silent meetings. The CERB ruled that the school committee's allegation that being silent in meetings is unsupported. The school committee provided evidence to establish that participation in meetings is required; they did not provide evidence that speaking in meetings is required. So we stay the course on remaining silent in meetings.


Of course, the school committee continues misrepresenting their actions to the public. In their most recent email to the parent community about this decision, they claim that "although CERB found that there was no mandatory duty for educators to speak during meetings absent a requirement or directive to speak, they did state that 'clearly communicated expectations regarding the level or type of participation required in any given meeting', may establish an unlawful withholding of services by employees who remain silent. CERB Strike Petition Ruling, at p. 38.


To be clear: CERB did not state that. It stated that "given the absence of clearly communicated expectations regarding the level or type of participation required in any given meeting, we decline to find that Unit A employees were engaged in an unlawful withholding of services by remaining silent during certain staff meetings" (p. 38). The school committee presented job descriptions, evaluation rubrics, principal evaluative practice, and none of these sources of evidence showed that participation = talking. We won, and the egg on the school committee members' faces is, in fact, egg.


So, as I said, stay the course. Now, when you are silent, be conscious precisely of what it is you are withholding when you withhold your voice: Your consent. You will do as you are told, you will participate as you are told. But you are in these meetings, and you are participating, because you are told to do so. Let your silence say just that until such time as whatever administrator that is running the meeting finds a way to communicate that they are on your side--our side--the side of a fair contract. Most administrators in this district found a way to communicate that in 2019. Most of our Unit B administrators are already finding a way to communicate that. It's time for principals to step up and find a way to do that this year too.


I anticipate that some members may ask whether, according to this ruling, we may continue not volunteering for voluntary activities. The answer is that the Newton School Committee has not (yet) filed a strike petition alleging that not volunteering your services for voluntary activities is a strike. Until such time as the school committee does petition to the CERB alleging that this is a an illegal strike or withholding of services, and the CERB issues a ruling that it is, stay the course. Do not volunteer for voluntary activities.


But what about the other decision, that you were on strike when you reported to your schools on opening day and prepared your classrooms for students? How does it impact us?


In some ways, not much. The convocation already happened, so the decision that it WAS a strike doesn't have much bearing on our campaign going forward.


Not much, as well, because you know you were not on strike, that you reported for duty and prepared for students. Not only do you know that: Your students know that. The community knows that. Even though the school committee may be willing to spend tens of thousands of dollars on attorney fees to prove you were on strike, everyone knows you were not. The school committee squandered taxpayers' money to win a legal battle while you showed up for your students. What hypocrisy!


Maybe they should consider a different legal strategy? How about bargaining in good faith!?


Legally, the decision implicitly endorses the idea that EVEN IF there was a past practice in place (going to a meeting was voluntary), the superintendent can issue a directive to override that past practice. On the one hand, the CERB argued that "an employer [does not] have the unfettered right to order employees to report anywhere to do anything during the workday" (p. 31). But the CERB goes on to argue that since administrators have the right to order employees to attend a meeting in their building, the superintendent has the right to direct employees to report to a meeting at the Newton South Field House. That's a pretty broad legal (and factual) stretch.


What is especially troubling is that it is self-evident that the slew of directives that Superintendent Nolin sent out on August 22, including the directive to attend opening day, were clearly meant ('directed') to thwart work to rule actions we were planning. Dr. Nolin told me directly that she intended to change the format of opening day at least in part to ward off a possible union action. She did not want, as happened in the past, the NTA to turn the spotlight on our contract negotiations during the opening day meeting. That was part of her reason for changing the format. In spite of its disclaimer, the CERB decision to call this action a strike doesn't do much to prevent the employer from exercising an "unfettered right to order employees to report anywhere to do anything during the workday" (p. 31). And in this case, it allowed the employer to do this in order to obstruct the legally protected right to engage in protected union activities.


Why go into this legalize? Well, because I fear that the CERB, in this part of its ruling, sanctions "management by directive," which is both hostile to and violative of our collective bargaining rights, and could be a pathway to allowing the district to get away with using other directives as a preface to another strike petition.


All that said, this decision was a victory for the NTA.


Tonight, high school students from Newton North and Newton South have organized to attend the school committee meeting. That's a victory too. I know it is late to ask you to attend the meeting in person, but if you can, sign on at home.


The school community is learning fast that this school committee does not represent them. It's about time school committee wised up to this fact. That's exciting to see.


Stay the course. Together we win.

In solidarity, Mike Zilles, President Newton Teachers Association

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