Legal Update on BAS

September 23, 2013 Legal Update

DoDEA Management Implements the Benchmark Assessment System (BAS) in DoDDS without Completing Bargaining with FEA

To: FEA Leaders and Educators (For Immediate Distribution)
From: H.T. Nguyen, FEA Executive Director/ General Counsel
Re: September 23, 2013 Legal Update- DoDEA Management Implements the Benchmark
Assessment System (BAS) in DoDDS without Completing Bargaining with FEA

At the end of SY 2012-2013, the "pilot" of the BAS ended in DoDDS schools in the FEA bargaining unit. Subsequently, DoDEA management informed FEA that it intended to implement the BAS in DoDEA. FEA entered into negotiations with DoDEA over the BAS. However, before these negotiations were complete, DoDEA management informed FEA that it had implemented the BAS in DoDDS schools in the FEA bargaining unit and sent out implementing instructions on September 12, 2013. This legal update is to provide DoDDS educators in the FEA bargaining unit with background on the BAS issues, what management intends to do, and the next steps in this process.

I. Background of this Issue

In 2011, DoDEA management and FEA negotiated a memorandum of understanding (MOU) to have a two school year "pilot" of the BAS in DoDDS schools in the FEA bargaining unit. This pilot period began in September 2011 and ended in June 2013. The BAS is a reading assessment that is administered to students in grades kindergarten through grade three (K-3).

The 2011 BAS MOU provided, among other things, that DoDDS educators in the FEA bargaining unit would have substitute coverage of their classrooms while they administered the BAS to their students individually, and also provided that DoDEA administrators were to enter the BAS data into DoDDS computer system. The MOU also required management to "negotiate to completion" if management decided to implement the BAS in DoDDS once the two school year pilot has been completed.

II. Negotiations over BAS Implementation

The Association received a great deal of feedback from teachers in the bargaining unit about their experiences with the BAS. The primary comment FEA received was that the BAS assessment was very time-consuming, which resulted in a significant amount of lost classroom instructional time. In general, FEA found that it generally took between 45 minutes to an hour to assess each child, which meant that in a "standard" DoDEA K-3 class of 18 or more students, it took several days per BAS administration to complete. As a result, many teachers reported to FEA that their students were losing around six days of instructional time per school year, which was widely believed to be a bad outcome.

When DoDEA management and FEA sat down to bargain, FEA was told that not only did management now want to mandate the BAS assessment twice a year, but that they now wanted teachers to input the data as well. Furthermore, management informed FEA that they felt that three days of substitute coverage per BAS assessment would be sufficient for data entry and the BAS assessment.

The Association has been strongly opposed to the loss of instructional time for our students, and management's proposal to now add BAS data entry onto the plates of teachers, forcing them to spend more time away from their K-3 students at a critical time in their instructional careers, was a real problem. Once again, management was proposing to encroach on instructional time, and dump more administrative duties on teachers. While the Association negotiated diligently, management unilaterally implemented the BAS, without reaching an agreement with FEA.

III. What Happens Now?

While the Association will litigate this matter (more on that to follow), at this time, you must follow management's instructions. On September 12, 2013, DoDEA headquarters sent instructions to the field on how the BAS was to be implemented in DoDDS schools in the FEA bargaining unit. These BAS instructions mandate two assessments- during the first and last six weeks of the school year. DoDDS teachers who perform the BAS assessment will be required to not only perform the assessment, but will also be required to input the data. Management will no longer do data entry. This means that you must perform the BAS assessment and you must input the BAS data.

IV. What is FEA Doing?

As noted above, FEA believes that in accordance with the 2011 BAS MOU, management was required to "negotiate to completion" before it could implement the BAS in DoDDS schools in the FEA bargaining unit. FEA believes that under federal labor law, if the parties declared an impasse in negotiations, then before management could implement, the parties must first proceed to the Federal Mediation and Conciliation Service (FMCS) for mediation, and if that did not resolve the dispute, then the parties would request the assistance of the Federal Services Impasses Panel (FSIP), and request a third party to decide the issue.

Therefore, FEA has filed an Association Grievance, alleging management illegally implemented the BAS in DoDDS schools in the FEA bargaining unit in violation of the 2011 BAS MOU, federal labor law, and decisions by arbitrators involving both parties. Please note that the filing of the Association Grievance DOES NOT STOP management from implementing the BAS.

In this grievance, FEA will request that the arbitrator declare that management illegally implemented the BAS in violation of the 2011 BAS MOU, and that DoDEA pay all affected educators for ALL time spent on any aspect of the BAS. As part of this litigation, FEA is asking all teachers who are affected by the BAS to "log" all of their time spent on the BAS.

V. What Information must I keep track of in this "Log"?

As noted above in Section IV, part of the relief FEA requests in the Association Grievance is that all teachers "required by DoDDS to perform duties associated with the implementation of the BAS, including but not limited to data input/entry and lesson plan preparations for substitutes, be paid for all extra and/or unilaterally assigned duties."

This means that the FEA Washington legal office is requesting that all DoDDS teachers in the FEA bargaining unit who are required by management to perform BAS duties keep a "log" of ALL of the time they spend on any of the duties listed above, or any others they may be assigned by management.

Our suggestion for the log is to put your name, grade taught and position, school and contact information at the top of the page. Then, each time you perform a duty assigned as part of the BAS, enter the date, the amount of time spent performing the duty, and a short narrative describing the duty performed and who assigned the duty. Please try and put the information in chronological order and on one or two sheets of paper. Just for illustrative purposes, here is one possible log entry.

9/30 - BAS for 5 students - 4.5 hours - Principal directed BAS to start today.

When you have finished all of the assigned tasks with the BAS assessment (fall or spring), at the bottom of the last page, please print your name, print your school name, then sign and date the log, and make a copy for your records. After this has been done, please mail a copy to the FEA Washington Office at the following address:

Federal Education Association
Richard Tarr, Associate General Counsel
1201 16th Street, N.W., Suite 117
Washington D.C. 20036

See this page or follow link below for a sample form you can use to log your BAS activity time.

VI. What else is FEA doing?

FEA has also filed a "waste, fraud and abuse" complaint with the DoD Inspector General (IG) over the BAS implementation. Please visit the FEA website to see a copy of the DoD IG complaint and to get more information about other FEA actions. However, please do NOT visit the FEA website during duty time, while on a government computer, and do not forward messages about the website on DoDEA Outlook.

IMPORTANT NOTICE: This update was issued on September 23, 2013. Any information contained in this update is based on the information and status of these issues as of that date. Please be aware that information contained in this update may have changed, been updated, or may be obsolete. Please visit the FEA website to check for any changes or updates to the information contained above. Thank you.