Intellectual Property Law

Are School's Internet Usage Policies a Matter of Collective Bargaining?

By Martha L. Arias

In the United States, schools are gradually adopting Internet usage policies for both students and faculty.  Indeed, the Children's Online Protection Act (COPA), 47 U.S.C.S. § 254, requires that schools receiving discounted Internet service adopt Internet safety policies.  The COPA's goal is to combat Internet distribution of obscene and harmful material.  Internet usage policies for students have not created as much controversy as those for faculty members.  Some labor unions claim that Internet usage policies for teachers are a matter of collective bargaining.  For instance, a Rhode Island Superior Court held that it is a matter of unfair labor practice to implement teachers' Internet usage policies without engaging in collective bargaining.

In general, subjects involving collective bargaining in the United States are categorized in three areas: (1) mandatory subjects; (2) permissible subjects; and (3) illegal subjects of bargaining. NLRB v. Wooster Div. of Borg-Warner Corp., 356 U.S. 342, 78 S. Ct. 718, 2 L. Ed. 2d 823 (1958).  According to the U.S. Supreme Court, employers cannot unilaterally modify mandatory subjects of bargaining.  Chem. & Alkali Workers, Local Union No. 1 v. Pittsburgh Plate Glass Co., 404 U.S. 157, 185, 92 S. Ct. 383, 400, 30 L. Ed. 2d 341 (1971).  There is no specific list of what constitute mandatory subject of bargaining; but, in general, issues that settle the relationship between the employer and employees (Id.) regarding the working environment, and that do not involve managerial decisions under the employer's sole control (Ford Motor Co. v. NLRB, 441 U.S. 488, 498, 99 S. Ct. 1842, 1850, 60 L. Ed. 2d 420 (1979))  are considered mandatory subjects of bargaining. Thus, the question is whether Internet usage policies for teachers are mandatory subject of bargaining.  

In Johnston Sch. Comm. v. R.I. State Labor Rels. Bd., 2004 R.I. Super. (2004), Rhode Island's Superior Court held that a school Internet usage policy for teachers was a mandatory subject collective bargaining because it affected the terms and conditions of the employer/employee relationship by impacting on the employee's disciplinary policy.  In this case, the school committee drafted and implemented an Internet usage policy that resulted in disciplinary sanctions for failure to comply with the policy.  Parents, students, and teachers were asked to sign this policy. The policy required adherence to the school and county code of conduct for those who used the school Internet network; privilege to Internet connection could be terminated and denied in the future if any violation occurred;  school officials would cooperate with authorities in case of any criminal investigation related to the school's network; faculty could only use the Internet for research and/or instructional purposes and any violation in this respect was to be handled according to the law, school's policies, or collective bargaining agreements;  the school network was supposed to be used in a responsible, efficient, and legal manner in support of the school's educational goals.  The Internet policy, in its final part, stated that "violation of this policy may constitute disciplinary action or criminal offense."

The school union complained before the Rhode Island State Labor Relations Board ("Board"). The Board held that the school Internet usage policy was an unfair labor practice because it was a mandatory subject adopted without proper collective bargaining.  Rhode Island Labor Relations Act says "It shall be an unfair labor practice for an employer to: . . . (6) Refuse to bargain collectively with the representatives of employees, subject to the provisions of §§ 28-7-14 -- 287 -19." G.L. 1956 § 28-7-13.  The Superior Court of Rhode Island affirmed the Board's holding.  The court held that (1) while the school committee's statutory obligations were not the subject of bargaining, the Internet policy exceeded the school's general obligations imposed by its statutes and COPA; (2) the policy affected the terms and conditions of teachers' employment because they impacted the employee disciplinary policy, which is an area of mandatory bargaining; and (3) it was improper labor dealing presenting the Internet usage policy for direct signing.

Labor unions are definitely an exceptional expression of liberty and democracy.  But one may wonder why sometimes their so called "collective" interests become so meddling and against "general" public policy. For instance, the broad policy in this case was the protection of minors from obscene and harmful material.  Yet, teachers' disciplinary issues prevailed over the broad policy.  Bargaining cost money and time; why do educators insist in a different standard regarding school's network Internet usage?  For law makers this is seen as federal law shadowed by labor union agreements. 

Full post as published by IBLS Internet Law Blog on January 12, 2009 (boomark / email).