Lee W. Jackson of O’Donnell, Schwartz & Anderson
Legal memorandum on seniority rights of DCPS teachers
August 1, 2008

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MEMORANDUM

ATTORNEY-CLIENT AND WORK PRODUCT PRIVILEGED

TO: American Federation of Teachers, AFL-CIO

FROM: Lee W. Jackson

DATE: August 1, 2008

RE: Seniority for Teachers

This memorandum addresses the seniority rights of DCPS teachers (i.e., WTU members), particularly in relation to abolishments, Reducations-in-Force (“RIFs”) and excessing. The information packet states that “seniority would no longer play a role in the hiring, excessing, or placement of bargaining unit members” in both the GREEN and RED systems. (Info. Packet at 12, 24.) Below, we clarify the differences among abolishments, RIFs, and excessing (DCPS has used these concepts interchangeably in the past). We point out the role of seniority in each process. Our ultimate conclusion is this:

The new definition of excessing in the information packet essentially describes a RIF or abolishment with none of the protections of those procedures — it appears to be an effort to eliminate all of the post-separation options such as one round of lateral competition, job sharing, reassignment, and reemployment as well as appeal rights over discrimination or failings in the process. Instead, the proposal replaces those rights with automatic termination for teachers in the GREEN system and eventual termination for teachers in the RED system. A condition as broad as “change in the local school program” suggests a quick method to terminate teachers without due process. In theory, the provisions of the CBA should not affect individual employees’ statutory rights under the statutory RIF and abolishment procedures. The Chancellor’s aim may be to in effect eliminate the characteristics of tenure enjoyed by teachers such that they no longer qualify as “career” employees and therefore their statutory RIF and abolishments rights. If so, we do not believe she will prevail in court. In any event, under the proposal WTU members will lose the contractual option of reassignment to another school based on their seniority.

* * *

A RIF is a reduction in personnel because of lack of funding or discontinuance or curtailment of a department, program, or function of an agency. Davis v. University of the District of Columbia, 603 A2d 849, 852 n.8 (D.C.1992). An abolishment is intended to eliminate positions, but does not require justification. D.C. Code §1-624.08(a). Excessing is a process under the WTU collective bargaining agreement and is the “involuntary transfer and assignment of a teacher from a work location to another due to enrollment and/or budgetary constraints.” (WTU CBA at “Definitions”)¹

Seniority includes system-wide seniority and building seniority. System-wide seniority is based on the continual length of service as a teacher in the DCPS system. Building seniority is based on the length of uninterrupted service in a particular school or school administrative unit in a particular area of certification. (WTU CBA at “Definitions”) Seniority is currently a factor in numerous personnel decisions under the WTU CBA and the D.C. Comprehensive Merit Personnel Act (“CMPA”).

Abolishment

The Abolishment Statute is a part of the RIF subchapter of the CMPA. See D.C. Code §1-624.08. An abolishment is a fairly extraordinary act in that it can occur without any restriction from any other law, regulation, or collective bargaining agreement. An abolishment leaves to each agency head the discretion to identify positions for abolishment. Any employee in an abolished has very limited rights — she is entitled to only one round of lateral competition under the general RIF regulations and can appeal the abolishment of her position only for discrimination or procedural deficiency and only to the Office of Employee Appeals (“OEA”).² Although the statute describes agencies making determinations on which positions to abolish before February 1st of each year, in practice this has only rarely, if ever, been done. DCPS has been one of the only District agencies to use the abolishment process. The statute sharply curtails RIF rights (emphasis added):

(c) Notwithstanding any rights or procedures established by any other provision of this subchapter, any District government employee, regardless of date of hire, who encumbers a position identified for abolishment shall be separated without competition or assignment rights, except as provided in this section.

(d) An employee affected by the abolishment of a position pursuant to this section who, but for this section would be entitled to compete for retention, shall be entitled to one round of lateral competition pursuant to Chapter 24 of the District of Columbia Personnel Manual, which shall be limited to positions in the employee’s competitive level.

This curtailment of RIF rights, including the marked discounting (but not total elimination) of seniority rights was upheld by the Court of Appeals for the District of Columbia Circuit in WTU v. D.C. Board of Education, 109 F.3d 774 (D.C. Cir. 1997).

One of the most significant ways that the abolishment process has been misapplied is through an agency’s focus on individuals it wants to let go instead of positions to be abolished. In theory, an abolishment means the permanent elimination of a position, whether or not it is encumbered. We have been told that there was inter-agency guidance given that an abolished position could not be reinstated for at least three years. We do not know whether that rule was followed after the 1997 and 2004 abolishments, and obviously it is a difficult rule for a union to enforce when faced with the opportunity to gain previously abolished positions in the bargaining unit. In practice, however, an abolishment is implemented like a RIF in that teachers are individually evaluated and their scores, as given by their principals, determine whether their positions are abolished. One of the four factors used in this evaluation is seniority (see below).

Reduction-In-Force\

The CMPA sets forth RIF procedures at D.C. Code §1-624.02. As noted, a RIF is a reduction in the number of employees in an agency. The RIF statute is fairly typical in that it permits a RIF in only certain compelling situations, mostly having to do with budgetary constraints. The RIF statute requires agencies to implement procedures that take into consideration individual factors such as tenure of appointment, length of service, veterans’ preference, and relative work performance in determining which employees to RIF. DCPS’s implementing regulations found in the District of Columbia Municipal Regulations (“DCMR”) do this by, as discussed above, having principals evaluate teachers in four areas: (1) significant relevant contributions, accomplishments, or performance; (2) relevant supplemental professional experiences as demonstrated on the job; (3) office or school needs, including: curriculum specialized education, degrees, licenses or areas of expertise; and (4) length of service. (5 DCMR 1503.2) Although length of service, or seniority, is not the dispositive factor, the ranking forms used in the past to rank teachers have given it about equal value with the other factors.

WTU and AFSCME District Council 20 are co-plaintiffs in litigation over the RIF regulations. (Nos. 06-CV-1071, 06-CV-1072 (Consolidated).) The plaintiffs’ contention is that the current regulations do not adequately take into account the factors laid out in the RIF statute, and that DCPS must therefore issue new RIF regulations. The case was dismissed in Superior Court because the judge concluded that the Office of Employee Appeals has exclusive jurisdiction over the unions’ claims. That, we believe, is plainly wrong and the case is currently pending on appeal. Although it is fully briefed, it has not been set for oral argument.

If a member is RIFed, he or she is entitled to one round of lateral competition to positions within his competitive level, priority reemployment consideration if ultimately separated, consideration of job sharing and reduced hours; and appeal rights. The CMPA makes reference to the possibility of severance pay for both RIFs and abolishments, but it is not mandatory and has never been provided to our knowledge. Teachers also have limited appeal rights; like in an abolishment, they can appeal to the Office of Employee Appeals if they believe their being RIFed was discriminatory or if DCPS did not correctly follow the RIF process. D.C. Code §1-624.02.

The limited appeal rights during RIFs and abolishments mean that those actions cannot be challenged through the grievance procedure. Any other separation from employment is subject to the just cause provisions of the WTU contract.

The WTU contract requires only that “[p]rior to a reduction-in-force, abolishment, or furlough during the life of this Agreement, DCPS agrees to consult the Union.” (WTU CBA at Article XLII.)

Competitive Areas and Competitive Levels

The D.C. RIF statute states that “[e]ach agency shall be considered a competitive area for reduction-in-force purposes.” D.C. Code §1-624.01. It then gives permission for “personnel authority” to “establish lesser competitive areas within an agency on the basis of all or a clearly identifiable segment of an agency’s mission or a division or major subdivision of an agency.” Id. The DCMR, governing RIFs within DCPS, states that the “Superintendent is authorized” to form competitive areas based on “all or a clearly identifiable segment of the mission, a division, or a major subdivision of the Board of Education.” (5 DCMR §1501.1) Examples include an individual school or office. Id. The regulations note that employees in one competitive area consisting of all positions in the same grade or occupational level that are sufficiently alike in the following characteristics that a person could be assigned to any position without changing the terms of appointment or unduly interrupting the work program: (a) Qualifications; (b) Requirements’ (c) Duties; (d) Responsibilities; (e) Pay schedules; and (f) Working conditions.” Id. at §1502. The abolishment statute does not define competitive areas or competitive levels. D.C. Code §1-624.08. It does state, however, that an employee “affected by an abolishment of a position pursuant to this section who, but for this section would be entitled to compete for retention, shall be entitled to one round of lateral competition pursuant to Chapter 24 of the District of Columbia Personnel Manual, which shall be limited to positions in the employee’s competitive level.” Id. at §1-624.08(d). It also states that the “establishment of a competitive area smaller than an agency” is not subject to review. Id. at §7-624.08(f).

Excessing

The WTU CBA defines excessing as the “involuntary transfer and assignment of teacher from a work location to another due to enrollment and/or budgetary constraints.” (WTU CBA at “Definitions.”) Excessing means only that an employee is involuntarily transferred from one school to another. Excessed teachers have a “priority in placement” to a new school “according to their system-wide seniority.” WTU CBA at Article IV.C.7.

The revised definition of excessing in the Information Packet is “an elimination of a bargaining unit member’s position due to budgetary constraints or a change in the local school program.” (Info. Packet at 13, 25.) Under the proposal, excessing would seem almost always to lead to termination. Although excessed teachers could be placed in another position, this happens only if there is “mutual consent” between the excessed teacher and the principal. (Info Packet at 14, 26.) If “mutual consent” cannot be reached, what happens to the excessed teacher depends on whether he/she is in the RED system or the GREEN system. If he/she is in the RED system, he/she has three options: (1) early retirement with full benefits if he/she has more than 20 years of creditable service; (2) a $25,000 buy-out, or (3) a one year grace period, including salary, benefits, and professional development, to secure another position. If the excessed teacher is in the GREEN system, however, he/she is automatically separated from the school system. (Id. At p. 26.)³

There remains the legal question whether a teacher could demand his or her RIF or abolishment rights if he or she is “excessed” under the proposal. For example, in Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974), the Supreme Court held that a union in the private sector could not waive the statutory right of employees to file EEO charges notwithstanding a clause requiring all issues to be submitted to arbitration. (The issue is again pending before the Supreme Court in 14 Penn Plaza, LLC, et al. V. Pyett, Docket No. 07-581.) The abolishment statute states explicitly that those rules apply notwithstanding any CBA to the contrary. The regulation (5 DCMR 1500.5), which covers both RIFs and abolishments, states: “The procedures set forth in this chapter shall supersede the terms of any negotiated collective bargaining agreement in force and effect or to be negotiated for any fiscal year ending September 30, 2002, and subsequent fiscal years.” We conclude that the law must be interpreted to mean that the Chancellor will not be able to eliminate statutory abolishment and RIF rights, including the factor of length of service (meager though those rights are), by negotiating the she is proposing into the new collective bargaining agreement. This would most likely have to happen in litigation challenging an actual abolishment or RIF, unless, as may be the case upon further research, there is sufficient likelihood of such an action that the ratified proposal could be challenged in a lawsuit seeking declaratory relief. (This is one of the issues pending before the D.C. Court of Appeals in the abolishment lawsuit mentioned above.) In any case, how the two systems are intended to interact, if at all, is challenging to decipher; this is certainly an area that warrants a demand for bargaining information to understand Chancellor Rhee’s intent.

1. Chapter 15 is titled Reduction in Force. However, RIF and abolishment is used interchangeably in the Chapter. For example, under Section 1503 (Reduction-In-Force Procedures for Fiscal Year 2000 and Subsequent Fiscal Years), it states that “[a]n employee who encumbers a position which is abolished shall be separated in accordance with this chapter notwithstanding date of hire or prior status in any other position.” (5 DCMR 1503.1). “If a decision must be made between employees in the same competitive area and competitive level, the following factors, in support of the purposes, programs, and needs, of the organizational unit comprising the competitive area, with respect to each employee, shall be considered in determining which position shall be abolished: (a) significant relevant contributions, accomplishments, or performance; (b) relevant supplemental professional experience as demonstrated on the job; (c) Office or school needs, including: curriculum specialized education, degrees, licensees or areas of expertise; and (d) length of service. (5 DCMR 1503.2). When an entire competitive level within a competitive area is eliminated, these factors need not be considered in determining which positions will be abolished. (5 DCMR 1503.3).

2. Technically, an employee is not supposed to be able to challenge how they were rated and selected for abolishment, but several teachers have succeeded in both making and prevailing on such claims before OEA. That said, some teachers have won appeals to the OEA based on the theory that unfair application of the rules deprived them of their right to a round of competition.

3. The WTU Contract provides teachers with other advantages tied to seniority, which would seem to be unaffected by the proposed CBA (the packet says “seniority would no longer play a role in the hiring, excessing, or placement of bargaining unit members.” Info. Packet at 12,24.). These are:

1. Voluntary Transfers:

If more than one teacher wants to voluntarily transfer to a different school, the teacher with the greater amount of system-wide seniority would be transferred. If the teachers had the same amount of system-wide seniority, the teacher with the greater building seniority would be granted the voluntary transfer.

2. Extra Duty Pay Activities

In cases where there are two equally qualified applicants for an extra duty pay activity vacancy, the teacher with the most seniority will receive the position.

3. Summer and Part-time Schools and Programs (Article XXX)

In cases where there are two equally qualified teachers applying for summer or part-time positions, system-wide seniority will be the prime consideration in employment if all the other factors are equal.