AUGUSTA, Maine — It was a nearly five-decade teaching career that spurred Rep. David McCrea, D-Fort Fairfield, to introduce legislation strengthening union negotiations by eliminating zipper clauses from public employee contracts.
“These zipper clauses have always put educators at a distinct disadvantage,” McCrea said earlier this week. “But during the current COVID-19 pandemic, unilateral decisions made by school districts have clearly pushed the envelope to the extreme.”
As McCrea explains it, Maine’s current labor law allows zipper clauses that preclude negotiations once contracts are signed. So, for example, if an employer wants to eliminate certain health benefits, add in drug screens or increase work hours, the zipper clause allows a unilateral decision because the contract is already closed or zipped up.
McCrea taught in Fort Fairfield for 48 years before retiring in 2016. During that time, he represented the Fort Fairfield Teachers Association in contract negotiations, serving as the union’s chief negotiator for most of that time.
“I can speak from experience that whenever a school district implements a change in procedures that impact the working conditions of educators, there is no means of modifying the change or its effects on teachers until the next contract negotiations as long as the zipper clause is within their contract,” he said. “This only thwarts productive and fair collaboration on the issues.”
In its most simple terms, LD 449, “An Act To Strengthen the Ability of Public Employers and Unions To Negotiate,” actually amends existing law to eliminate zipper clauses in Maine’s public employee contracts.
In a 1982 test of employee zipper clauses, The Maine State Employees Association challenged the state, alleging the state interfered with, restrained and coerced employees of the Department of Environmental Protection, the Department of Human Services and the Board of Cosmetology by making unilateral changes in the wages, hours and working conditions for these employees.
After a Maine Labor Relations Board hearing, the MSEA had no recourse because they had agreed to the zipper clause.
“In the applicable collective bargaining agreements between the parties, the MSEA has waived its right to bargain over the unilateral changes which have been implemented,” the labor board decision read.
Nonetheless, Steven Bailey, executive director of The Maine School Management Association, who is opposed to McCrea’s proposed legislation, said that zipper clauses are rare in current teacher contracts.
Conversely, the Maine Education Association said most contracts still contain zipper clauses.
“A quick search of our contract database shows virtually all MEA contracts have zipper clause language in them to one degree or another,” Nate Williams, director of collective bargaining and research, said in his testimony this week.
Bailey said that Williams’ assessment is an “overstatement” of the situation. In a Friday afternoon interview, Bailey said he knows of several Maine school districts working on side letters regarding COVID-19 guidelines for teachers. The letters are an agreement between the union and the school board, Bailey said.
“Districts found a way to meet and talk about the safety of teachers and students,” he said.
Still, when asked, Bailey did not have examples of specific districts that have done this.
“Our associations [Maine School Boards Association and Maine Superintendents Association] don’t understand why this bill has been introduced when its intent is to overturn contract language already agreed upon by both sides,” Bailey said in his testimony via Zoom this week. “This bill introduces a very dangerous concept, which is [that] legislators will start to amend local contracts that are in the purview of the local teachers’ association and the school board.”
The current pandemic brings bargaining agreement issues to light, Williams said.
“Experience has shown us that collaboration and creative problem-solving are the best methods to resolve issues in a way that benefits students,” he said. “Zipper clauses restrict the parties’ ability to do that. With a zipper clause, it just takes one party to withhold consent from negotiating how the issue is to be resolved.”
Those opposed to eliminating the clause from public employee contracts say it will lead to perpetual negotiations, but Wiliams said that is not the intent.
McCrea said that teachers are pushed to extremes with new COVID-19 teaching obligations.
“I understand that unilateral decisions made by some school districts during this COVID-19 pandemic have put their teachers in situations which are unfair, health-threatening and all too often under serious stress,” McCrea said. “Teachers are required to deliver lessons remotely, in-person or in many cases, both, while exposing themselves to the virus and perhaps carrying the virus home to their families.
“Not only are teachers expected to teach under this much more difficult situation,” McCrea continued. “They very often must find some way to ensure that their own children not only have care at home but also must help their own children with their schooling. I know of several teachers who have either decided to retire or simply leave the profession for both their own wellbeing as well as that of their family.”
LD 449 was referred to the Labor and Housing committee.