Your school district falls into one of two categories:  either you are already implementing cyber–education in some form or you will be implementing cyber-education in the next few years.  In response to the increasing popularity of cyber schools and students’ demand for greater educational choices and flexibility, every school district must confront how to incorporate cyber-education into its traditional curriculum.  While school districts have implemented different cyber-education models, each has an impact on the school district’s existing teaching staff.  School districts should give early consideration to labor issues that may arise upon implementing cyber-education before they become significant.

The Pennsylvania Public Employee Relations Act (PERA) defines the obligations of public employers, such as school districts, regarding negotiation with teacher bargaining units.  With cyber-education, two different sections of PERA come into play.  One section requires school districts to bargain with teacher unions over “wages, hours and other terms and conditions of employment.”  On the other hand, another section states that an employer is not required to bargain over matters involving managerial policy, including “utilization of technology.”  This provision does require that employers participate in a meet and discuss process over those matters which have an impact on the terms and conditions of employment.

The question for school districts and labor unions alike is where the introduction of cyber-education falls on that continuum; is it a matter which must always be bargained, a matter which need never be bargained or a matter which must be addressed through meet and discuss?  There are two cases decided by the Pennsylvania Labor Relations Board (PLRB) which provide conflicting guidance on these issues and underscore the need for school districts to engage in advance planning.

The Rochester School District purchased an online health program called “Brain Honey” from the Beaver County IU and implemented the program in the school year following the furlough of several teachers.  The online program provided all health instruction to the District’s students in an online format, with an assigned health teacher present in the classroom but only to monitor the students to ensure they were making progress. The teacher did not perform any instruction, evaluation or grading. The teachers’ union filed an unfair labor practice arguing that the Brain Honey program represented an unlawful diversion of bargaining unit work.  The PLRB’s Hearing Examiner disagreed, however, and found that the program was a lawful implementation of technology.  While employers are not permitted to use technology as a pretext to remove bargaining unit work, the Hearing Examiner found that the introduction of the online health program completely changed the manner in which health courses were taught to students.  This changed the essential function of the job of teaching health and did not represent a diversion of bargaining unit work.

On its face, the PLRB’s August 26, 2010 Rochester decision represents a broad grant of discretion to school entities to implement cyber-education, provided that the implementation represents a change in the functions of teaching.  However, in a June 21, 2011 decision, the PLRB muddied the waters.  An unfair labor charge was filed after the Tredyffrin-Easttown School District implemented a pilot program to permit high school students the opportunity to take Latin I and II, German I and Visual Basic courses through an online provider.  The courses could be taken before, after or during normal school hours and were “taught” by an instructor employed by the third-party provider.  While the online course grades were not included on report cards or counted towards a student’s GPA, the credits were counted toward the graduation requirements.  The school district’s teachers were not involved in any capacity in providing the online instruction, and even the lab monitoring was performed by an Assistant Principal.

In response to the unfair labor practice filed by the District’s teachers, the PLRB found that there had been an unlawful diversion of bargaining unit work.  The PLRB noted that the courses offered online had been previously taught by the District’s teachers, and actual instruction was now being provided by the third-party provider’s instructors.  In this regard, the PLRB distinguished this arrangement from the Rochester School District’s use of the Brain Honey health program.  Teachers were still used to monitor the classrooms in Rochester although the essential functions of the job of teaching health had been changed.  In comparison, the online arrangement adopted by Tredyffrin-Easttown shifted the responsibility for teaching from the District’s teachers to the third party provider.  The complete exclusion of the District’s teachers from the function of teaching the online courses led to a finding that bargaining unit work had been diverted.

Reading the cases together, the PLRB appears willing to view the significant changes brought about by cyber-education as part of an employer’s right to utilize technology, but with the expectation that teachers will continue to play some role.  At the very least, technology cannot be used to simply replace a district’s teaching staff with a third party provider.  To that end, school districts implementing or planning cyber-education should structure the cyber-education in such a manner that it changes the essential function of teaching a class while still preserving a role for the current teachers in the instruction.  These are admittedly complex questions.

The safest course to follow is to meet and discuss with the teachers’ union at the outset to attempt to reach some understanding as to the application of cyber-education and its impact on instruction and teaching conditions.  In some instances, teachers’ unions may be satisfied with an assurance that positions will not be eliminated.  In other instances, the union may attempt to micromanage the district’s implementation of technology.  While reaching agreement on these issues may be contentious, such an agreement through meet and discuss outweighs the uncertainty of appearing before the PLRB.

Alfred C. Maiello
Alfred Maiello

Alfred C. Maiello is the founding member of MBM and has represented area school districts as solicitor for 50 years. He counsels school districts and educational institutions on leading developments in school law and guiding them through their day-to-day and long-term challenges.