Holding: Management violated the bargaining
agreement by installing surveillance cameras in areas of high school where
instruction was conducted.
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Berkley School District, Mich.
and
Berkley Education Assn.
MEA/NEA
Grievance No. 04-05-02
122 LA (BNA) 356
October 26, 2005, Decided
May 22, 2006, Reported
William P. Daniel, Arbitrator
Facts
High school principal Derrick Lopez testified that
in November, 2004 following a bomb threat at the high school of the previous
month the District developed a plan to install surveillance cameras in certain
areas of that facility.
Teachers and union representatives were made aware of this plan in November,
and again in December. An “e-mail” was sent to all staff members on December
13, 2004. The Superintendent Dr. Tresa Zumsteg, sent a letter to all parents
regarding this matter on December 14 and had met with student representatives
the previous day.
The
surveillance cameras were installed during the winter recess. According to
Lopez this was done solely for the purpose of security concerns based upon
documented acts of violence which had occurred at other schools throughout the
country; he emphasized the cameras had not been installed in any “private
areas”.
Several teachers and union representatives voiced
concerns that the cameras had been installed in areas where instruction was
conducted—two gymnasiums, the pool area and the Design Center and were
activated during the entire school day. Lopez responded to these concerns that
the sole purpose was related to safety and security issues. Lopez testified
that he assured all individuals that any matters recorded by the cameras would
not be used whatsoever in regard to “teacher performance”. He noted in his
testimony and as he informed the staff the cameras did not provide any type of
audio or recording and so could not possibly be used as a method of evaluating
teacher performance.
Lopez was
cross examined and asked to explain how the e-mail was sufficient to notify
teachers of installation of cameras in instructional areas; he felt that it was
“notification by implication”. He testified that there was a total of 32
cameras that were installed to monitor common areas such as hallways,
entrances/exits; he acknowledged that his e-mail did not mention that there
would be 4 instructional areas also covered by the cameras.
He was
unable to answer whether any such tapes taken from the surveillance cameras
were subject to FOIA. It was the Association's belief that such actions of installation
of surveillance cameras constituted a violation of the contract which prohibits
the use of surveillance devices of any kind.
Gerald
Haymond a MEA Uniserv Director for 31 years explained while he did not
negotiate the language in Article 3 Section 5 there were 2 occasions when the
Association had to defend the intent of the language. The first occurred in the
mid 1980s when Human Resources Director Blaney informed the Association that
due to suspected student drug/alcohol sales occurring outside in the parking
lot the District was going to set up cameras in the hallways leading to that
area. The Association asserted Article 3, Section 5 in opposition and the
District decided instead to have 2 paraprofessionals actually monitor the
parking lot with binoculars.
Haymond
testified the second situation was in the early 1990s when the District planned
on putting cameras in the new science and art wing to prevent theft of the new
equipment. Again the Association cited Article 3, Section 5 and the District
did not carry through on its plans. According to Haymond since that time in the
negotiations in which he participated neither the District nor the Association
made any proposals to change that language. He believed that this indicated the
District understood the restrictions that the article made and accepted that.
He also took
issue with Lopez's statement that the cameras would not be used for teacher
evaluation. He felt that teachers are constantly being evaluated even when it
is not a formal process and that such cameras in instructional areas would be
inappropriate under the contract. Haymond felt that teachers had a good reason
to be concerned that what might show up on a surveillance camera might be used
against them and that such could be misconstrued without having the benefit of
the entire episode or even the verbal aspect.
Association
Vice President Dan Inman testified about his past responsibilities as an
officer and building representative. When he first became aware that the
surveillance cameras had already been installed it was after Winter Break. They
covered instructional areas and this he believed was in violation of the
contract. He met with Lopez and asked why the cameras had been so installed and
was told that they were needed for safety reasons and to keep the “outside
element” out of the buildings. He asked Lopez at the time if the reason for
installing the cameras was to monitor who was entering the building from the
outside why couldn't the cameras just be focused there or turned off during
instructional times; the teacher would be present to observe any such incident
during class.
The BEA president, Mary Lou Gleason testified
about the processing of the grievance noting that approximately 10 of the total
284 members of the bargaining unit were singled out to have their instruction
constantly monitored by the cameras. Reasons given by the District during grievance processing that
the cameras were primarily for safety after break ins and a bomb threat brought
further clarification that those incidents had occurred after the instructional
day.
The Association rejected the Superintendent's
suggestion of a Letter of Agreement indicating that the tapes would not be used
for any evaluative purpose because there was no absolute guarantee that some
third party might not be able to secure access and moreover that the visual
aspect of the tape could easily be misunderstood and the true circumstances not
be apparent.
Gleason
testified that at Level 3 the board president asked whether the cameras could
be turned off and Director of Finance Gallagher indicated that he would check
and see but that nothing came of it. She noted further that during the current
contract negotiations the District made a proposal to change the language—4 months
after the instant grievance was filed.
Pertinent
Contract Provisions
Article II
Board rights
and responsibilities
Section 1.
The Board, on its own behalf and on behalf of the electors of the school
District, hereby retain and reserve unto itself, without limitation, all
powers, rights, authority, duties and responsibilities conferred upon and
vested in it by the school code and the laws of the state, the Constitution of
the State of Michigan and/or the United States. Such rights, duties, etc.,
shall include, by way of illustration and not by way of limitation, the right
to, subject to the terms and conditions of this Agreement:
A. Manage
and control its business, its equipment, and its operations and to direct the
working forces and affairs of the entire school system within the boundaries of
the Berkley School District.
* * *
D. Determine
the services, supplies, and equipment necessary to continue its operation and
to determine all methods and means of distributing the above and establishing
standards of operation, the means, methods and processes of carrying on the
administrative work of the District.
Article III
Teacher
evaluation and progress
* * *
Section 5. All monitoring or observation of the
work of the teacher shall be conducted openly and with the full knowledge of
the teacher. The use of eavesdropping, closed circuit television, public
address or audio systems and similar surveillance devices, shall be strictly
prohibited.
Positions of
the Parties
Employer
The Board's
rights and responsibilities clearly provide for the right to manage and control
the school business, its equipment and its operations and that is exactly what
it has done here. There is absolutely no restriction on its right to use
devices such as cameras for the purpose of safety and security of the teaching
staff, other personnel and the property of the District.
Article III, Section 5 which the Association
relies upon only prohibits the use of surveillance devices for monitoring
performance which is not involved in this case nor is it proposed to make use
of the cameras for that purpose. The two prior cited by Association witness Haymond occurred many
years ago and in different circumstances. The problems which have occurred at
many schools throughout the United States certainly constitute such a change of
circumstance as to require a more appropriate view of the Board's right in this
regard.
It has been made very clear that under no
circumstances would the recordings be used for evaluation or monitoring of
teacher performance.
There is no legitimate basis for the claim that this violated the contract; in
this case the District has acted simply to carry out its legal duties and
responsibilities. For these reasons the grievance should be denied.
Union
The language in Article III, Section 5 clearly
prohibits the use of surveillance devices of any kind. Here these cameras were
intentionally installed in instruction areas and would be operating during
periods that the teachers were there giving instruction. The contract language
means exactly what it says and there are no exceptions recognized. The District has agreed with the
Associations’ interpretation of this language in the past and cannot now change
its position. There is no Association objection to the installation of cameras
in common areas, hallways and non-instructional areas or even outside the
building for the purpose of security and safety but such is not permitted by
the contract in instructional areas and is not necessary.
It further
must be recognized that there is no way to absolutely guarantee that such video
will not be made available to outside third parties or in some case used for
the purpose of assessing and evaluating the actions of a teacher in the process
of instruction. For the reasons noted it is asked that the arbitrator direct
the removal of the cameras in the 4 instructional areas or the making of them
inoperable during periods of instruction.
Issue
Did the
District violate the collective bargaining agreement by installing surveillance
cameras at the high school which operate in instructional areas during the
school day?
Opinion
The
arbitrator is a creature of the contract between the parties and has only that
authority and jurisdiction granted him. Where the contract is clear and
unambiguous it is his obligation to apply and enforce its terms.
The District
is to be commended for its concern for the safety and security of the students
and employees and the premises of the high school. In this day there is valid
reason for that as has been well documented by events in many schools across
the country.
Principal
Lopez's testimony outlined the concern and the purpose—that outsiders might
enter the building posing a threat or that the security of the entrance/exit
doors might be compromised with persons coming and going into and out of the
building during the school day. He explained that because these 4 areas have
access directly to the outside they were of particular security importance.
The
Association concedes that there is cause for concern and in fact accepts to a
certain degree the security proposed by the District. The arbitrator agrees
that cameras in the hallways and other common areas are useful in this regard.
The problem for the District here is that the
contract language very specifically states that cameras cannot be installed
that would enable the monitoring or observation of the work of a teacher. It
also cites the various type of device used here—closed circuit television. It
is the argument of the District that somehow its right to operate the schools
and carry out its responsibility to provide for security and safety overrides
that clause in the contract or that because it does not intend to use the tapes
for the prohibited purpose the cameras may be permitted. However, the
management rights language does not authorize this arbitrator to disregard the
unambiguous terms of the contract to the contrary. Its rights are limited by
Article III, Section 5 in this regard.
The District
makes two points by way of argument—first that the tapes would never be used
for any purpose adverse to the teachers interest or for evaluation of
performance and secondly that there is no other way to assure the security and
integrity of the building entrance/exit areas.
However even though the District would assure the
teachers that such tapes during instruction showing some incident between a
teacher and a student would not be used that is no guarantee. Court ordered
production of such tape by way of discovery in legal proceedings is possible,
and, moreover, the police in making an investigation of criminal charges could
also force access. All of that could be contrary to the interests of any
teacher involved. The fact is
that confrontations do occur in instructional areas and the camera tapes could
well be misunderstood to the detriment of the teacher not showing events before
or after and without audio, not fully explaining exactly what transpired. It is
found that the offer by the District to “guarantee” that such tapes would never
be used for purposes prohibited by Article III, Section 5 is not enough to
justify an exception to that provision.
As to the second claim of this being the only way
to secure the perimeter of the building and entrance/exits, the arbitrator must
disagree. Cameras put on the outside of the building focused on the doorways
would give a continual picture of persons entering or exiting through the doors
in those areas without involving the class' instruction by the teacher.
In summary, it is the arbitrator's finding that
Article III, Section 5 absolutely prohibits the use of closed circuit
television where such may—even unintended by the District—tape the performance
of the teacher. There is no extenuating circumstance or retained management
rights that overcomes that clear and unambiguous language. The District has
other options for providing security for such instructional areas which have
access to the outside by locating cameras focused only on entry/exit doors
which do not intrude upon instructional areas.
Award
The
grievance is granted. The installation and operation of surveillance cameras in
areas where teachers are instructing students constitutes a violation of
Article III, Section 5. The
District is directed to either remove the cameras from those areas or turn them
off during instructional periods.