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A. THE LAW. The law provides few limitations regarding reduction in force provisions in collective bargaining agreements. Proposals concerning the procedures for reductions in force (e.g., notifying the union in advance that there will be a RIF) are mandatory subjects of bargaining. Appeal of State of New Hampshire, 138 N.H. 716, 727 (1994). Proposals concerning the standards which must be met before a school district may reduce force (e.g., lack of work, budgetary constraints, etc.) are permitted subjects of bargaining. Appeal of State of New Hampshire, 138 N.H. at 726. Proposals concerning the standards for determining which employees will be laid off (e.g., performance compared to other employees in the same classification) are permitted subjects of bargaining. Appeal of State of New Hampshire, 138 N.H. at 726. For teachers, the amendments to RSA 189:14-a, III, last year now prohibit reductions in force that are “based solely on seniority.” That is, such provisions are prohibited subjects of bargaining. Reduction in force is one kind of non-renewal. Thus, tenured teachers are entitled to reasons and a hearing under RSA 189:14-a if they are laid off. Petition of Gorham School Board, 121 N.H. 878, 881 (1981). B. MINIMIZE CONSTRAINTS AND MAXIMIZE DISCRETION. The best reduction in force provisions for school districts are those which impose minimal procedural constraints on the school district, and maximize the school district’s discretion to decide whether to reduce force and to decide which employees to lay off. One example of such a reduction in force provision is the following: “ARTICLE 5 - REDUCTION IN FORCE 5.1 The District shall have the authority to determine the number of employees in each classification. 5.2 In the event the District determines it is necessary to conduct a lay off, it shall initially attempt to determine the number of possible resignations and retirements in a good faith effort to avoid potentially unnecessary lay offs. 5.3 An employee who is laid off shall have recall rights to any vacant position for which he/she is qualified. A laid off employee shall be offered recall to a vacant position for which he/she is qualified before a new employee is hired for that position. The 2
determination as to the laid off employee’s qualifications is solely a matter for the Board’s and the administration’s discretion, and shall not be subject to arbitration. Employees shall retain recall rights for a period of one (1) year from the date first laid off. Refusal to return from layoff shall result in loss of recall rights.” This example places only slightly more constraints on the school district: “ARTICLE 12 – REDUCTION IN FORCE 12.1 The Board and administration shall have the authority to determine the number and qualifications of employees in each job classification. 12.2 In the event the Board and administration determine that it is necessary to conduct a reduction in force, the administration shall initially attempt to determine the number of possible resignations and retirements within each job classification in a good faith effort to avoid potentially unnecessary layoffs. 12.3 If further reduction in force is necessary within a job classification, the administration shall choose employees for layoff within that job classification based upon assessment of the employee’s ability, qualifications, experience and performance. If all these factors are relatively equal in the judgment of the Superintendent or his/her designee, the employee(s) with the least seniority shall be laid off first from that job classification. 12.4 Definitions: 12.4.1 ‘Job classifications’ means the positions listed in Section 1.2. 12.4.2 ‘Seniority’ shall be calculated from the date that an employee commenced his/her current term of continuous employment by the School District in a position in this bargaining unit.” These provisions impose few procedural constraints on the school district, retain unlimited discretion for the board to decide whether to reduce force, and allow the district broad discretion to decide which employees to lay off. These and many similar reduction in force provisions have been negotiated in the initial collective bargaining agreements for bargaining units that were formed after the Appeal of State of New Hampshire decision in 1994. In these negotiations the school boards had great negotiating leverage because they could refuse to bargain over union-proposed standards for 3
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2012 Michael Elwell Negotiating Improved Language to ... - SmartEDU

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