CERB Rules That Teachers Participated In Illegal Strike

The Commonwealth Employment Relations Board (“CERB”) recently issued a decision holding that Andover Public Schools teachers participated in an illegal strike in violation of G.L. c. 150E, § 9A when they refused to enter school buildings on the first work day of the school calendar for 2020-2021 and insisted instead on performing their work outside the buildings on a remote basis.

In Andover Education Association, No. S.I.-20-8176 (Sept. 8, 2020), the district had designed, and then obtained approval from DESE for, a “hybrid” school reopening plan.  Teachers were directed to report to their designated buildings on the first day of the work year to engage in professional development – no different than any other year.  The variation in this year’s professional development work, however, was based on the Commissioner of DESE’s reduction of student learning time by 10 days, from 180 to 170, pursuant to emergency regulations and on his entry into an MOU with the MTA, AFT, and Boston Teachers Union that the 10 days would instead be devoted to reopening “preparation” work.  The district therefore scheduled activities for the first day that included tasks mandated by DESE’s COVID-19 reopening guidelines such as moving desks, testing Wi-Fi operation between classrooms and offices inside the buildings, and wayfinding around the buildings to learn new walking paths.

The union voted to have its members engage in what was labeled a “workplace safety action” in which teachers would allegedly work remotely outside of the buildings which they claimed had HVAC concerns.  As a result, many teachers did not accomplish their assigned duties for that day.  The School Committee filed a strike petition and the Department of Labor Relations’ strike investigation promptly ensued on September 3, 2020.  The CERB issued its decision on September 8, finding that those teachers who refused to enter their schools had engaged in an illegal strike and that the union and its officers also had violated the statute by condoning and encouraging a strike.

The CERB found first that the duties scheduled for the first day were required and were established by consistent practice even though the specific tasks may have been new for this school year.  It pointed out that the scheduled tasks inside buildings were an intrinsic part of the teachers’ duties given the unique circumstances of this school year arising from the pandemic.  The CERB noted that the union cited no authority permitting its members to “unilaterally dictate where they perform their work.”  It emphasized that a strike that violates § 9A is not limited to a full or partial refusal to perform duties but also covers a concerted refusal to report for duty.  The issue, therefore, was what constitutes reporting for duty under the law.

The CERB concluded that the phrase “report to duty” in G.L. c. 150E, § 1 “means reporting not only when but where the employer has ordered its employees to report.  In this case, that means inside the school buildings, including inside classrooms.”  The CERB expressly rejected the union’s argument that the law permits an employee to report to any location from which an employee can perform duties remotely.  Finally, the CERB ruled that despite labeling what happened as a “workplace safety action”, the union had presented insufficient evidence of circumstances giving rise to an “imminent risk of serious injury or death” such as might justify a refusal to enter the buildings.

The CERB therefore ordered the union and its officers to cease and desist; ordered the union’s officers to notify union members of their obligation to fully perform their duties; and ordered them to inform members of the contents of the order.

This decision addresses the “new normal” driven by the pandemic, in which remote work and learning are part of the fabric of public education in Massachusetts.  Under this ruling employees who attempt to unilaterally dictate when or where they will perform work, or what work will be performed, now risk being found to have violated Massachusetts law.

If you have any questions about the content of this update, or employment or school law generally, please contact us.

This update is provided for informational purposes only and should not be considered legal advice.