Holding: Management violated the bargaining agreement by installing surveillance cameras in areas of high school where instruction was conducted.
Berkley School District, Mich.
Berkley Education Assn.
Grievance No. 04-05-02
122 LA (BNA) 356
October 26, 2005, Decided
May 22, 2006, Reported
William P. Daniel, Arbitrator
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
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.
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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.
Teacher evaluation and progress
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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
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.
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.
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?
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.
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.