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ILLINOIS SCHOOL BOARD JOURNAL


May/June 2013

Bargaining PERA evaluations :
What to expect at the table
by Thomas M. Melody

Thomas Melody is a partner with the Chicago law firm of Klein, Thorpe and Jenkins, Ltd. His practice is concentrated in labor and employment law. He is a member of the executive committee of the Illinois Council of School Attorneys and contributes regularly to IASB activities.

With PERA implementation dates on the not-too-distant horizon, it is important to start thinking about what teachers’ unions might be expected to demand when it comes to including data and indicators of student growth as a significant factor in rating teacher performance. In fact, contracts that are being bargained right now may well extend beyond a district’s applicable implementation date, and thus would have to address this issue. This article is intended to make some predictions, hopefully reasonable ones, as to possible union positions on various issues related to the negotiation of post-implementation date teacher evaluations.

At the outset, it is important to remember the role of the joint committee as expressed in the PERA itself:

By no later than the applicable implementation date, such school district shall, in good faith cooperation with its teachers or, where applicable, the exclusive bargaining representative of its teachers, incorporate the use of data and indicators on student growth as a significant factor in rating teaching performance, into its evaluation plan for all teachers, both those teachers in contractual continued service and those teachers not in contractual continued service. The plan shall at least meet the standards and requirements for student growth and teacher evaluation established under Section 24A-7, and specifically describe how student growth data and indicators will be used as part of the evaluation process, how this information will relate to evaluation standards, the assessments or other indicators of student performance that will be used in measuring student growth and the weight that each will have, the methodology that will be used to measure student growth, and the criteria other than student growth that will be used in evaluating the teacher and the weight each will have. To incorporate the use of data and indicators of student growth as a significant factor in rating teacher performance into the evaluation plan, the district shall use a joint committee composed of equal representation selected by the district and its teachers or, where applicable, the exclusive bargaining representative of its teachers. 105 ILCS 5/24A-4.

In addition to these provisions, Illinois State Board Education regulations require the joint committee to determine the types of assessments (Type I, II or III) to be used for each category of teachers, subject to the general limitations set forth therein (23 Ill.Admin.Code §50.110). The joint committee is also required to determine how certain student characteristics shall be used for each measurement model chosen to ensure that they best measure the impact that a teacher, school and school district have on students’ academic achievement.

This is the role of the joint committee. It is expected that the unions will try to expand the role of the joint committee beyond what is provided for in the statute and the regulations, and to expand the requirements relating to the joint committee to a position that all aspects of an evaluation plan have to be negotiated. This is obviously to be avoided. While teacher evaluation plans have always had to be done in cooperation with the teachers’ union, allowing the joint committee to have more authority than it actually has would unduly expand the role of the union in the creation and the operation of the plan.

It has long been the case that the procedural aspects of an evaluation plan are mandatory subjects of bargaining, but the substantive aspects of the plan are not (Alton Education Association and Alton Community Unit School District No. 11, 9 PERI ¶ 1085 (IELRB, 1993)). PERA did not change this. In fact, PERA specifically provides:

Nothing in this subsection (a) shall make decisions on the use of data and indicators on student growth as a significant factor in rating teacher performance mandatory subjects of bargaining under the Illinois Educational Labor Relations Act that are not currently mandatory subjects of bargaining under the Act. 105 ILCS 5/24A-4.

PERA did, obviously, call for the creation of the joint committee and specify its duties. But this does not mean that substantive aspects of an evaluation plan are now mandatory subjects of bargaining, or that all aspects of an evaluation plan are now subject to approval by a committee that has a 50-50 split of teachers and management. Thus, even though the use of data and indicators on student growth is required to be incorporated into the evaluation plan in good faith cooperation with the teachers’ union, this does not mean that all aspects of the evaluation plan, or even those aspects of the plan under the “jurisdiction” of the joint committee, are now mandatory subjects of bargaining.

It is also expected that the unions may attempt to use PERA to encroach on other management rights or to otherwise expand their rights and powers in the realm of teacher evaluations. For example, they may claim that there should be some kind of appeal procedure by which a teacher can challenge his or her evaluation rating. There is no requirement that any such procedure exist and it should not, at least in my opinion, exist. Evaluation ratings, as substantive components of an evaluation plan, do not have to be negotiated and are not subject to arbitration (Board of Education of DuPage High School District No. 88 v. IELRB, 246 Ill.App.3d 967, 617 N.E.2d 790 (1 st Dist., 1993)).

As another example, the unions may claim that the joint committee should be involved in RIFs or in filling vacancies. Just because the RIF revisions in Senate Bill 7 now relate RIFs to evaluations does not mean that the joint committee should have anything to do with RIFs. Similarly, the fact that vacancies now have to be filled based on qualifications and not just seniority does not bring the joint committee into that discussion. The joint committee has nothing to do with either of these topics and if any such effort is undertaken it should be resisted.

Also, it is important to remember the reason PERA was adopted, which is set forth in the findings at the beginning of the Act:

The General Assembly finds and declares all of the following:

(1) Effective teachers and school leaders are a critical factor contributing to student achievement.

(2) Many existing district performance evaluation systems fail to adequately distinguish between effective and ineffective teachers and principals. A recent study of evaluation systems in three of the largest Illinois districts found that out of 41,174 teacher evaluations performed over a five-year period, 92.6 percent of teachers were rated “superior” or “excellent,” 7 percent were rated “satisfactory,” and only 0.4 percent were rated “unsatisfactory.”

(3) Performance evaluation systems must assess professional competencies as well as student growth.

(4) School districts and the state must ensure that performance evaluation systems are valid and reliable and contribute to the development of staff and improved student achievement outcomes.

The General Assembly seems to have realized that when every employee, or nearly every employee, gets the highest possible evaluation rating, then the whole evaluation system becomes virtually worthless. Evaluation ratings should accurately reflect the skills and abilities of the employee being evaluated and, just like every member of the group cannot be the worst, every member of the group cannot be the best. When all employees are rated “excellent” then the meaning of “excellent” is necessarily and automatically watered down. Thus, in working with the joint committee to incorporate the data and indicators on student growth, I believe it is important to remember that the purpose of evaluations is not to make all the employees as happy as possible but to ensure that our teachers are continuing to develop and our student achievement outcomes are improving. Efforts to “water down” the impact or outcome of using data and indicators on student growth should, in my opinion, be avoided.

It is also expected that the unions may try to expand the 180-day timeline. This should be avoided. PERA requires that if the joint committee cannot reach agreement on the things it is supposed to reach agreement within “180 calendar days of the committee’s first meeting,” then the district shall implement the model evaluation plan established by the state board of education with respect to the use of data and indicators on student growth. The 180-day timeline, and the required consequence of having to adopt the state plan, is a built-in protection against the unions requiring never-ending negotiations and thus avoiding the implementation altogether. In my opinion, the 180-day timeline is a strict and clear timeline and cannot be avoided by arguing that some committee meetings are “informal” or “unofficial.” The fact that there is a maximum time frame for the joint committee’s work to be completed is, in my opinion, a benefit to management that should not be abandoned.

Finally, the unions may also try to claim that they have some right to select or to participate in the selection of the management representation on the joint committee. Nothing in PERA changed the well-settled labor law principle that both sides have complete discretion to select their own representatives. Just like management has no right to determine who the union brings to the table, the union has no right to determine who management brings to the table. The number of representatives from each side has to be equal. This does not mean that either side gets to pick who is on the other side.

In conclusion, a lot remains to be seen with respect to union strategies relating to the negotiations of PERA evaluations. These predictions hopefully will provide some item of what we can expect as the implementation dates get closer.

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