HOUSE DOCKET, NO. 2388        FILED ON: 1/15/2015

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 3390

The Commonwealth of Massachusetts

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PRESENTED BY:

Daniel Cullinane

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To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:

The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An Act to improve adult basic education access and quality.

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PETITION OF:

HOUSE DOCKET, NO. 2388        FILED ON: 1/15/2015

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 3390

The Commonwealth of Massachusetts

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In the One Hundred and Eighty-Ninth General Court
(2015-2016)

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An Act to improve adult basic education access and quality.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
 

Chapter 69 of the General Laws is hereby amended by inserting after section 1H, as appearing in the 2012 Official Edition, the following section:-

Section 1H ½. (a) As used in this section the following words shall, unless the context clearly requires otherwise, have the following meanings:-

“Administrative assessment”, an amount paid by the department to the adult basic educators organization for the costs of representing adult basic educators as provided in subsections (c) to (e), inclusive.

“Adult basic education program”, a public or private entity which holds a grant or contract with the department for the provision of adult basic education services as provided by section 1H, or which provides such adult basic education services pursuant to an inter-agency agreement or sub-contract with an adult basic education program.

“Adult basic education services”, all teaching, student support, administrative, professional development services provided by an adult basic education program and professional development services provided to adult basic educators and to adult basic education programs.

“Adult basic educators”, any individual who is compensated directly or indirectly by an adult basic education program to provide adult basic education services.

“Adult basic educators organization”, the organization selected by the adult basic educators to represent them in negotiating, executing and administering an adult basic education standards agreement with the department on behalf of the Commonwealth.

“Adult basic education standards agreement”, or “standards agreement”, the agreement negotiated between the department and the adult basic educators organization.  The written agreement shall legally bind the commissioner, the Commonwealth, and the adult basic educators organization.

“Commissioner”, the commissioner of the department of elementary and secondary education.

“Department”, the department of elementary and secondary education.

(b) The commissioner shall develop and enforce quality adult basic education standards to improve the delivery and quality of adult basic education at adult basic education programs.  Such standards shall be developed through negotiations as set forth in subsection (e) with an organization selected by adult basic educators.  The process of developing and enforcing such standards shall in no way limit or intrude upon the rights of adult basic educators under federal labor law or under chapter 150E of the General Laws. 

(c) Subsections  (b) to (f) 8, inclusive, shall apply to all adult basic educators.

(d)  (1) Adult Basic Educators shall have the right to form, join and participate in the activities of an organization of their own choosing for the purpose of representation and negotiations with the commissioner over those subjects specified in paragraph (1) of subsection (e).

(2) The commissioner or his or her designee may engage on behalf of the Commonwealth in negotiations with the adult basic educators organization and agree to terms of an adult basic education standards agreement pursuant to subsection (e).

(3)  Every adult basic education program shall provide to the commissioner a list of the names of all currently employed adult basic educators with additional information for each including home address, telephone numbers, e-mail addresses, workplace addresses and job titles.  Such lists shall be provided in the manner requested by the commissioner within 30 days of enactment, and annually thereafter by January 30. Except as provided in paragraph (4) the list shall not be a public record.

(4) The commissioner shall, upon request and written certification that the list and accompanying information shall be used solely for the purpose of seeking to represent or continuing representation of adult basic educators, provide to an organization a list of all current adult basic educators who are authorized to select a representative under subsection (d). Such list shall contain such information including name, home address, telephone numbers, e-mail addresses, workplace addresses and job titles for each adult basic educator.

(5) The commissioner on behalf of the Commonwealth shall recognize an adult basic education organization designated by adult basic educators in accordance with the following process:

(i) The Commissioner on behalf of the Commonwealth shall extend recognition to an organization identified by a showing of written majority support by the adult basic educators authorized to select a representative under this section.  A showing of majority support shall be verified by a neutral third party, agreed upon by the organization and the commissioner, who shall conduct a confidential inspection of the showing of majority support to determine whether the organization has such support and shall report the results to the commissioner, organization and adult basic educators; or

(ii) The commissioner, upon receipt of an organization’s petition that 30 per cent of adult basic educators in the commonwealth wish to be represented by that organization, or upon receipt of a petition filed by or on behalf of 45 per cent of the adult basic educators in the commonwealth alleging that the recognized adult basic educator organization no longer represents a majority of the adult basic educators, shall direct an election by secret ballot or shall use any other suitable method provided the opportunity for a private vote is preserved to determine whether, or by  which organization, the adult basic educators desire to be represented for purposes of this section. Said election shall be conducted by an experienced, neutral third party selected by the adult basic educators organization from a list of 5 neutral third parties prepared by the commissioner.  The commissioner shall certify the organization that receives a majority of the votes cast in such election as the recognized adult basic educators organization.  The decision of the neutral shall be final and binding.

(6) In any election conducted pursuant to subparagraph (ii) of paragraph (5), the commissioner, the department, the Commonwealth and the adult basic education programs shall not seek to influence the vote of any adult basic educator.   Recognition pursuant to this section shall remain in effect until a majority of adult basic educators chooses another adult basic educator organization or no adult basic educators organization in accordance with subparagraph (ii) of paragraph (5).  Only 1 organization at any time may be recognized as the representative of adult basic educators for purposes of this section.

(7) No election shall be conducted when a valid election has been held on the preceding 12 months or an adult basic education standards agreement is in effect.

(e) (1) Negotiations between the commissioner and the adult basic educators organization shall be limited to matters related to the department’s role in adult basic education as described in section 1H, including: (i) professional development and training; (ii) conditions affecting recruitment and retention of adult basic educators; (iii) programmatic performance review criteria; (iv) career development payments made by the commonwealth to compensate professionals for increases in educational attainment and incentives for advancement; (v) improving access for adult basic educators to retirement, health and welfare benefits; (vi) the grant and contract application criteria and process; (vii) the manner, method,  level ,  and structure and rate of both rate-based and non rate-based  funding by the department; (viii) an administrative assessment; and (ix) dispute resolution procedures related to (i) through (viii).

(2) The parties shall seek to reach an adult basic educators standards agreement through good faith negotiation based on the interests of both parties.  If after a reasonable period of negotiations the parties are unable to reach an agreement, the parties shall engage, and share the costs of a third party facilitator or mediator to assist them in further interest-based negotiations.  The parties may engage such a facilitator or mediator at any earlier stage of negotiations.  A facilitator or mediator shall be empowered to order the parties to exchange information that is reasonably necessary and relevant to negotiations and to require specific representatives authorized to enter into an adult basic educators standards agreement to be present during negotiations.  If after a reasonable period of facilitated or mediated negotiations the parties are unable to reach an agreement, the facilitator or mediator shall issue a written report indicating the subjects upon which agreement was reached and recommendations for a complete agreement with a rationale.  If the full report is not mutually agreeable to the parties, the mediator or facilitator shall determine a schedule for resumed negotiations, provided that the parties may mutually agree at any time to adopt such recommendations as to which there is agreement and limit further negotiations to the issues remaining in dispute.  The mediator or facilitator may request information from the parties regarding their respective positions on any matter in dispute.

(3) The adult basic education standards agreement reached between the commissioner, the Commonwealth, and the adult basic educators organization shall not exceed a term of 3 years; provided however, that the parties may mutually agree to modify or extend an agreement or any portion thereof for a period of time in excess if the agreement’s duration.  The agreement shall be reduced to writing and executed by the parties.

(4) The commissioner shall submit to the clerks of the senate and the house of representatives and the house and senate committees on ways and means within 30 days after the date on which the agreement is executed by the parties, a request for an appropriation necessary to fund the cost items associated with matters identified in paragraph (a1); provided, however, that if the General Court is not in session at that time, such request shall be submitted at the next session thereof. If the General Court fails to enact an appropriation necessary to fund the cost items, such cost items shall be returned to the parties for further negotiations.

(5) The commissioner shall take all necessary steps to implement and enforce the terms of the agreement.  If an agreement contains a conflict between matters which are within the scope of negotiations pursuant to this section and any rules, regulations or policies of the department, the terms of the adult basic educators standards agreement shall prevail.

(6) This section shall not create or modify:

(i) The adult basic education program’s right to choose, direct and terminate the services of an adult basic educator that it employs;

(ii) The rights of employers and employees under the National Labor Relations Act , 29 U.S.C. 151, et seq. or under chapter 150E of the General Laws;

(iii) The right of the commissioner, the department, and the secretary of education to adopt requirements pursuant to section 1H, except that such requirements shall not diminish the minimum standards established under an adult basic educator standards agreement;

(7) In enacting this chapter, the General Court intends to provide state action immunity under federal and state antitrust laws for the joint activities of adult basic educators and the organization they select to represent them for purposes of this chapter.

(f) This act applies only to the relationship, as defined in subsections (c) through (e), between the department and adult basic educators.  If any part of this act is found to be in conflict with federal requirements that are a prescribed condition to the allocation of federal funds to the state, the conflicting part of this act is inoperative solely to the extent of the conflict and with respect to the programs or centers directly affected, and any such finding does not affect the operation of the remainder of this act in its application to the programs or centers concerned.  Standards adopted under this act shall meet federal requirements that are a necessary condition to the receipt of federal funds by the commonwealth.

(g) This act may be known and cited as the Access to Quality Adult Basic Education Act.