Aspect of South Elementary School investigation decision overruled

Sep. 15—The Andover Education Association has won an appeal to a Department of Labor decision regarding the Andover School Committee's actions in a 2019 conduct investigation at the South Elementary School.

A previous Sept. 27, 2021 decision regarding the 2019 internal investigation into allegations of a hostile workplace environment at South School Elementary, found some complaints later lodged against the School Committee to be valid and while others were dismissed.

A new ruling issued on August 16, 2022 by the Commonwealth Employment Relations Board (CERB) reverses an aspect of the prior ruling. The new decision says the Andover School Committee violated the law when an internal investigator asked employees not to discuss what they had talked about during questioning, that was part of the internal investigation, with anyone in the district or school but their union representative. The ruling called this an "overly-broad directive that could chill reasonable employees from engaging in protected, concerted, activity."

Matt Bach, AEA president called the new decision a vindication for the teachers involved in the investigation.

"Once again the South School teachers who engaged in protected activity and organized to improve their working conditions by correcting the bad behavior of a principal have been vindicated. Hopefully, the School Committee now recognizes the value of listening to educators and their union rather than pursuing a retaliatory investigation which only enriched the district's lawyers," Bach said.

While School Committee Chair Susan McCready said the decision was a clarification of the law surrounding how schools should handle internal investigations into allegations of misconduct.

"The CERB used this appellate case as an opportunity to clarify an ambiguity in the law concerning how investigators may instruct witnesses about collaborating in order to maintain the integrity of investigations," McCready said. "The Andover School Committee appreciates the CERB's recognition of the law's ambiguity and equally the need to preserve the integrity of workplace investigations."

Background

Lengthy court documents chronicl the background on the recent decision and outline the initial complaints made by staff at South Elementary School and the subsequent investigation.

The documents begin their narrative on November 6, 2019 with a staff meeting, held by South School Principal Tracy Crowley, that included playing a quiz game called Kahoot. During the game teachers answered questions regarding their coworkers' personal lives including questions about their spending habits and hobbies. Two days later the AEA held a meeting to discuss union business and the Kahoot game, with some teachers saying it made them feel uncomfortable or embarrassed.

On November 12, two members of the union told Crowley that other members of the union had been offended by the game. Crowley approached two union representatives to say that she was sorry if she offended anyone and that she felt terrible about it.

The next day Crowley held a staff meeting where she said that she "knew that people were talking about her, and that this upset her." Crowley also talked about a "divide" between the staff at this meeting, according to the documents.

On Friday, November 22 Bach sent Crowley a letter asking that she stop "engaging in unlawful actions that have the effect of intimidating" bargaining unit members. Bach said these unlawful actions included telling union members that she knew what was discussed during a union meeting and expressing dissatisfaction with it to a group of teachers.

Three days later Crowley responded with a letter denying any unlawful action, saying she had not asked about or monitored the union meeting and had instead been approached by teachers who were upset about the conduct at the meeting.

On the same day the school received a complaint letter claiming six union members and school employees would meet during free time during the day and make derogatory statements toward students, staff and administrators. The letter claimed the goal of the group was to remove Crowley from her position as principal.

Sheldon Berman, then-superintendent of schools, met with the senders of the letter and hired Wendy Chu, an attorney who represents the School Committee, to look into the claims in the letter. Chu later said that during the course of her investigation she gave instructions to those she interviewed not to talk about what was discussed with anyone in the district or school, except with their union representative. Chu added that this was a normal practice during this kind of proceeding and said that confidentiality was integral to her investigation.

Chu ended her investigation in February 2020. Her findings substantiated some of the allegations and as a result six employees received letters of reprimand with three being transferred to other schools.

The unfair labor practice charges were filed a few months before in December of 2019 by the AEA. This charge led to the 2021 decision and the most recent decision in August of 2022.

The recent decision to grant the appeal of the AEA centered around the instructions given by Chu which the Commonwealth Employment Relations Board ruled "were not narrowly tailored to achieve their purposes." The documents continue saying that the broad nature of the instruction "could cause a reasonable employee to believe that they could not discuss anything having to do with the investigation, including the investigation itself, union meetings and/or their opinion of the administration at all, even if done in the context of addressing other workplace concerns."

The August 2022 decision by the Commonwealth Employment Relations Board has resulted in a modification to the Order and Notice to Employees. The notice now include this line, "We will not interfere with, restrain or coerce employees in the exercise of their rights under the Law by imposing overly broad restrictions upon employee communications."