Governor Doyle recently signed 2009 Wisconsin Act 34 into law, which requires that preparation time be treated as a mandatory subject of bargaining. The new law reverses a Wisconsin Supreme Court decision that held that a guaranteed amount of preparation time was a permissive subject of bargaining. Dodgeland Education Association v. WERC, 250 Wis.2d 357 (Wis. 2002).
The Act defines “preparation time” as: “…time spent during the school day, separate from pupil contact time, to prepare lessons, labs, or educational materials, to confer or collaborate with other staff, or to complete other administrative duties.” The new law is not effective immediately, however, Act 34 states that “[T]his act first applies to collective bargaining agreements that cover any period that begins after June 30, 2011.”
Because of the delayed effective date of the Act, preparation time remains a permissive subject of bargaining until June 30, 2011. This means that a school district currently is under no legal obligation to bargain over this issue, but may do so if it so chooses.
Consequently, school districts should carefully scrutinize their labor agreement for guaranteed preparation time provisions that unduly restrict their ability to assign duties to teachers. This may be a school district’s last chance to “evaporate” preparation time language from its teachers’ contract, as a permissive subject of bargaining, upon its expiration. For the same reason, a district that is contemplating a change in the structure of the school day may wish to pursue that issue now. However, care must be taken in formulating bargaining strategies on preparation time, as the impact of preparation time issues — as opposed to the decision on how much preparation time to provide — can be a mandatory subject of bargaining, even now.
Once preparation time becomes a mandatory subject on July 1, 2011, school districts can expect teachers’ unions to submit proposals to “lock-in” a certain amount of guaranteed preparation time. At that point, a district will be obligated to bargain the issue, but this means that the district has a legal obligation to bargain; it does not mean that it has a legal obligation to reach an agreement. That said, school district negotiators will also have to bear in mind that teachers’ unions will be entitled to submit a dispute over preparation time to interest arbitration, just as they can with other mandatory subjects of bargaining.
Districts now have a two year window to review and assess issues concerning preparation time in their teacher contracts. Because each case is different, districts are strongly advised to consult with their legal counsel before proceeding.
Please feel free to contact your Davis & Kuelthau attorney if you have any questions regarding this matter.