Collective Bargaining in School Districts

 
AM I REALLY REQUIRED TO
BARGAIN OVER THAT %*#!!!?
 
 
 
Douglas G. Griffin
Assistant General Counsel, School Board of Broward County &
Author, School Law Answer Manual
 
WHAT ARE THE TYPES OF BARGAING
SUBJECTS?
 
MANDATORY SUBJECTS
PERMISSIVE SUBJECTS
PROHIBITED SUBJECTS
 
WHY DOES A DISTRICT CARE 
DURING
BARGAINING
 WHETHER A SUBJECT IS
MANDATORY OR PERMISSIVE?
 
A school district must bargain over mandatory subjects; and, if the parties
do not reach agreement, their dispute must be settled through the impasse
resolution procedure established in Fla. Stat. § 447.403.
Permissive subjects may be voluntarily bargained, but they may not be
bargained to impasse.
 
WHAT QUESTIONS MUST BE ANSWERED TO
DETERMINE WHETHER AN ISSUE CONSTITUTES
A MANDATORY SUBJECT OF BARGAINING?
 
1.
Does the issue have a direct and substantial impact on wages, hours, and
terms and conditions of employment?
2.
Doe the issue impact an inherent managerial prerogative?
3.
Does the issue involve a waiver of the union’s right to bargain?
WHAT IS THE TEST FOR DETERMINING
WHETHER AN ISSUE IMPACTS TERMS AND
CONDITIONS OF EMPLOYMENT?
 
Florida courts have not developed a precise test for determining whether a
certain subject is important enough to be considered a “term and condition
of employment.”
Most courts therefore have determined the issues on a case-by-case basis,
but, the key is how direct the impact of an issue is on the well-being of the
individual teacher, as opposed to its effect on the operation of the school
system as a whole.
 
WHAT IS A DISTRICT’S DUTY TO BARGAIN OVER
WAGES, HOURS, AND TERMS AND CONDITIONS
OF EMPLOYMENT DURING NEGOTIATIONS?
 
If the subject matter of a proposal is 
purely
 a wage, hour, term or condition of
employment, not involving inherent managerial rights, it is a “
mandatory
subject of bargaining
” and either or both parties may insist to impasse on its
position.  Disagreements on mandatory subject of bargaining must be
resolved through the impasse resolution procedure.
 
WHAT MATTERS ARE CONSIDERED
MANAGERIAL RIGHTS FOR PURPOSES OF
DETERMINING BARGAINING OBLIGATIONS?
 
It is the right of the school district to determine unilaterally 
the purpose of
each of its constituent agencies
, set 
standards of services
 to be offered to
the public, and exercise 
control and discretion over its organization and
operations
.
It is also the right of the school district to direct its employees, take
disciplinary action for proper cause
, and 
relieve its employees 
from duty
because of 
lack of work 
or for 
other legitimate reasons
.
When is a matter effecting both a managerial
prerogative and a term or condition of
employment a mandatory subject of bargaining?
 
According to Supreme Court, the courts are to apply a balancing test to
determine whether the employees’ right to collectively bargain, or
management's right to exercise control and discretion should predominate.
According to PERC,  the district must negotiate such decisions unless the
matter involves management prerogatives 
directly related to the public
employer's fundamental policy prerogatives.
 
May a School Board impose a waiver of
bargaining rights on the union?
 
No.  A waiver of the statutory bargaining rights provided by Section 447.401,
Florida Statutes, is a permissive item of bargaining which may not be imposed
by the legislative body.
What are the basic rules for determining whether
an item is a mandatory subject of bargaining?
 
Matters only impacting wages, hours, terms or conditions of employment
are mandatory.
Matters only impacting managerial prerogatives are permissive.
Matters impacting both managerial prerogatives and terms and conditions
of employment must be balanced to determine which predominates.
Matters involving a waiver of a union’s right to bargain are permissive.
 
Let’s test our knowledge
 
Bonuses to newly hired (e.g. STEM) teachers.
MANDATORY SUBJECT
Supplemental pay for extracurricular activities.
MANDATORY SUBJECT
Subcontracting services that will replace existing employees.
PERMISSIVE SUBJECT
Let’s test our knowledge (cont’d)
 
Evaluation Criteria
PERMISSIVE SUBJECT
The number of instructional periods teachers must teach
MANDATORY SUBJECT
Reducing the length of the workday
MANDATORY SUBJECT
Let’s test our knowledge (cont’d)
 
Mandatory furloughs to alleviate economic shortfalls
PERMISSIVE SUBJECT
Excluding discipline issues from the collective bargaining agreement
MANDATORY SUBJECT
Job descriptions or job classifications
PERMISSIVE SUBJECT
Let’s test our knowledge (cont’d)
 
Duration clauses effective longer than 1 year.
MANDATORY SUBJECT
A salary proposal conditioned on an agreement to waive the right to bargain over
changes in insurance
PERMISSIVE SUBJECT
Settlement of pending grievance
PERMISSIVE SUBJECT
Once a permissive subject is included in the
agreement, may the parties insist to impasse that
it continue to be included in future years?
 
No.  Even when parties agree to include a permissive subject of bargaining in a
contract, that voluntary agreement does not mean that the other party may
insist to impasse that the provision be continued in future negotiations.
Does a district commit a ULP if it still has
permissive subjects of bargaining in its proposals
when the union declares impasse?
 
No, so long as the district modifies its proposals to eliminate permissive
subjects from its proposals before final resolution.  If the Section 447.403,
impasse resolution process is utilized, neither party may insist that a special
magistrate consider a nonmandatory subject of bargaining. In addition, a
legislative body may not impose a nonmandatory subject such as a waiver of a
union' s right to bargain over mandatory subjects of bargaining.
 
WHY DOES A DISTRICT CARE 
DURING  THE
CONTRACT
 WHETHER A SUBJECT IS
MANDATORY OR PERMISSIVE?
 
As a general rule, a public employer may not unilaterally alter the 
status quo 
of
a mandatory subject of bargaining, i.e., wages, hours, and terms and
conditions of employment of its employees during the term of a collective
bargaining agreement.
How is the “status quo” established in the event
that an express term and condition in the
collective bargaining agreement conflicts with
past practice?
 
When terms or conditions of employment are in a contractual provision, the
status quo is determined by reference to the precise wording of the relevant
contractual provision.
 
How is the “status quo” established in the event
that either the agreement is either ambiguous or
silent regarding a term or condition?
 
A change to the “status quo” is more than that the employer changed a practice
involving a mandatory subject of bargaining. It must be established that the past
practice that has been altered:
1.
had been unequivocal,
2.
had existed substantially unvaried for a significant period of time prior to the
change, and
3.
could reasonably have been expected by bargaining unit employees to have
continued unchanged.
 
When may a district unilaterally alter the status
quo of a mandatory subject of bargaining during
the contract?
 
A district may only unilaterally alter the status quo of a mandatory subject of
bargaining if it can establish:
1.
a clear and unmistakable waiver by the union of the right to bargain over
the subject,
2.
legislative body action taken after impasse, or
3.
extraordinary circumstances requiring immediate action.
 
May a district unilaterally alter the status quo of a
mandatory subject of bargaining 
after term of a
collective bargaining agreement has expired
?
 
Generally, no.  Following the expiration of a collective bargaining agreement,
an employer is prohibited from unilaterally altering the status quo of
mandatory subjects of bargaining.
May a district unilaterally alter the status quo of a
subject that is an inherent managerial right
during the term of an agreement without
bargaining over the decision?
 
Yes.  If the subject matter of the decision is an inherent managerial right, not
involving a term or condition of employment, the school district may act
unilaterally because the matter is considered a permissive subject because it
falls within managerial prerogative.
 
Is a district obligated to bargain over any
“impacts” on terms and conditions of
employment relating to implementation of a
subject that is an inherent managerial right?
 
Yes, but only if a timely demand for impact bargaining is made by the union
which identifies 
specific
 negotiable effects on wages, hours, terms and
conditions of employment. An effect is negotiable if it is “direct and
substantial.”
 
May a district proceed to alter the status quo of a
subject that is an inherent managerial right
before giving the union a reasonable opportunity
to negotiate impacts?
 
No.  The district must afford the union reasonable time to impact bargain prior
to implementation of a change.
 
Is the district required to complete the entire
impasse resolution process before proceeding to
alter the status quo of a subject that is an
inherent managerial right?
 
No, although the district must allow for a reasonable opportunity for the union
to identify and negotiate impacts, the impasse process contained in Section
447.403, need not be completed prior to modifying the status quo.  After a
reasonable opportunity to negotiate the impacts, the district may declare
impasse, implement its decision, and thereafter proceed to complete the
impasse process.
 
Let’s test our knowledge
 
As has been done in the past, adjusting cafeteria workers hours up or down
to meet needs (agreement is silent)
Strictly enforcing language in the agreement for the first time that all
mandatory extra-duty time for teachers shall be compensated at $20/hr.
Adding a new extra-curricular activity that you want to pay the same as all
of the comparable coaches
 
Let’s test our knowledge (cont’d)
 
Adding hour of instruction to student day because it is in the lowest 300
Changing percentage of dependent health insurance premium contribution (not
stated in the agreement)
Changing health insurance benefits (e.g. deductibles, co-pays, etc.) where plan is
mentioned by reference (e.g. “the health insurance plan provided by the Board.”)
 Changing health insurance benefits (e.g. deductibles, co-pays, etc.) per
recommendation of the long-established district insurance committee.
 
What are prohibited subjects of bargaining?
 
Provisions of an agreement are null and void from the outset only when they:
1.
Involve unlawful subjects of bargaining,
2.
Are contrary to a statute or constitutional provision, or
3.
Seek to achieve a purpose contrary to public policy.
 
What are examples of prohibited subjects of
bargaining?
 
Smoking on Campus.
Binding interest arbitration.
“Just cause” for non-renewal of probationary teachers.
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Collective bargaining in school districts involves negotiating over mandatory and permissive subjects such as wages, hours, and conditions of employment. School districts must differentiate between mandatory and permissive subjects, and disputes over mandatory subjects must be resolved through impasse resolution procedures. Various criteria are used to determine if an issue constitutes a mandatory subject of bargaining, and the impact on terms and conditions of employment is a key factor. Districts have a duty to bargain over wages, hours, and terms of employment during negotiations, but managerial rights are excluded from bargaining obligations.


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  1. AM I REALLY REQUIRED TO BARGAIN OVER THAT %*#!!!? Douglas G. Griffin Assistant General Counsel, School Board of Broward County & Author, School Law Answer Manual

  2. WHAT ARE THE TYPES OF BARGAING SUBJECTS? MANDATORY SUBJECTS PERMISSIVE SUBJECTS PROHIBITED SUBJECTS

  3. WHY DOES A DISTRICT CARE DURING BARGAININGWHETHER A SUBJECT IS MANDATORY OR PERMISSIVE? A school district must bargain over mandatory subjects; and, if the parties do not reach agreement, their dispute must be settled through the impasse resolution procedure established in Fla. Stat. 447.403. Permissive subjects may be voluntarily bargained, but they may not be bargained to impasse.

  4. WHAT QUESTIONS MUST BE ANSWERED TO DETERMINE WHETHER AN ISSUE CONSTITUTES A MANDATORY SUBJECT OF BARGAINING? 1. Does the issue have a direct and substantial impact on wages, hours, and terms and conditions of employment? 2. Doe the issue impact an inherent managerial prerogative? 3. Does the issue involve a waiver of the union s right to bargain?

  5. WHAT IS THE TEST FOR DETERMINING WHETHER AN ISSUE IMPACTS TERMS AND CONDITIONS OF EMPLOYMENT? Florida courts have not developed a precise test for determining whether a certain subject is important enough to be considered a term and condition of employment. Most courts therefore have determined the issues on a case-by-case basis, but, the key is how direct the impact of an issue is on the well-being of the individual teacher, as opposed to its effect on the operation of the school system as a whole.

  6. WHAT IS A DISTRICTS DUTY TO BARGAIN OVER WAGES, HOURS, AND TERMS AND CONDITIONS OF EMPLOYMENT DURING NEGOTIATIONS? If the subject matter of a proposal is purelya wage, hour, term or condition of employment, not involving inherent managerial rights, it is a mandatory subject of bargaining and either or both parties may insist to impasse on its position. Disagreements on mandatory subject of bargaining must be resolved through the impasse resolution procedure.

  7. WHAT MATTERS ARE CONSIDERED MANAGERIAL RIGHTS FOR PURPOSES OF DETERMINING BARGAINING OBLIGATIONS? It is the right of the school district to determine unilaterally the purpose of each of its constituent agencies, set standards of services to be offered to the public, and exercise control and discretion over its organization and operations. It is also the right of the school district to direct its employees, take disciplinary action for proper cause, and relieve its employees from duty because of lack of work or for other legitimate reasons.

  8. When is a matter effecting both a managerial prerogative and a term or condition of employment a mandatory subject of bargaining? According to Supreme Court, the courts are to apply a balancing test to determine whether the employees right to collectively bargain, or management's right to exercise control and discretion should predominate. According to PERC, the district must negotiate such decisions unless the matter involves management prerogatives directly related to the public employer's fundamental policy prerogatives.

  9. May a School Board impose a waiver of bargaining rights on the union? No. A waiver of the statutory bargaining rights provided by Section 447.401, Florida Statutes, is a permissive item of bargaining which may not be imposed by the legislative body.

  10. What are the basic rules for determining whether an item is a mandatory subject of bargaining? Matters only impacting wages, hours, terms or conditions of employment are mandatory. Matters only impacting managerial prerogatives are permissive. Matters impacting both managerial prerogatives and terms and conditions of employment must be balanced to determine which predominates. Matters involving a waiver of a union s right to bargain are permissive.

  11. Lets test our knowledge Bonuses to newly hired (e.g. STEM) teachers. MANDATORY SUBJECT Supplemental pay for extracurricular activities. MANDATORY SUBJECT Subcontracting services that will replace existing employees. PERMISSIVE SUBJECT

  12. Lets test our knowledge (contd) Evaluation Criteria PERMISSIVE SUBJECT The number of instructional periods teachers must teach MANDATORY SUBJECT Reducing the length of the workday MANDATORY SUBJECT

  13. Lets test our knowledge (contd) Mandatory furloughs to alleviate economic shortfalls PERMISSIVE SUBJECT Excluding discipline issues from the collective bargaining agreement MANDATORY SUBJECT Job descriptions or job classifications PERMISSIVE SUBJECT

  14. Lets test our knowledge (contd) Duration clauses effective longer than 1 year. MANDATORY SUBJECT A salary proposal conditioned on an agreement to waive the right to bargain over changes in insurance PERMISSIVE SUBJECT Settlement of pending grievance PERMISSIVE SUBJECT

  15. Once a permissive subject is included in the agreement, may the parties insist to impasse that it continue to be included in future years? No. Even when parties agree to include a permissive subject of bargaining in a contract, that voluntary agreement does not mean that the other party may insist to impasse that the provision be continued in future negotiations.

  16. Does a district commit a ULP if it still has permissive subjects of bargaining in its proposals when the union declares impasse? No, so long as the district modifies its proposals to eliminate permissive subjects from its proposals before final resolution. If the Section 447.403, impasse resolution process is utilized, neither party may insist that a special magistrate consider a nonmandatorysubject of bargaining. In addition, a legislative body may not impose a nonmandatorysubject such as a waiver of a union' s right to bargain over mandatory subjects of bargaining.

  17. WHY DOES A DISTRICT CARE DURING THE CONTRACTWHETHER A SUBJECT IS MANDATORY OR PERMISSIVE? As a general rule, a public employer may not unilaterally alter the status quo of a mandatory subject of bargaining, i.e., wages, hours, and terms and conditions of employment of its employees during the term of a collective bargaining agreement.

  18. How is the status quo established in the event that an express term and condition in the collective bargaining agreement conflicts with past practice? When terms or conditions of employment are in a contractual provision, the status quo is determined by reference to the precise wording of the relevant contractual provision.

  19. How is the status quo established in the event that either the agreement is either ambiguous or silent regarding a term or condition? A change to the status quo is more than that the employer changed a practice involving a mandatory subject of bargaining. It must be established that the past practice that has been altered: 1. had been unequivocal, 2. had existed substantially unvaried for a significant period of time prior to the change, and 3. could reasonably have been expected by bargaining unit employees to have continued unchanged.

  20. When may a district unilaterally alter the status quo of a mandatory subject of bargaining during the contract? A district may only unilaterally alter the status quo of a mandatory subject of bargaining if it can establish: 1. a clear and unmistakable waiver by the union of the right to bargain over the subject, 2. legislative body action taken after impasse, or 3. extraordinary circumstances requiring immediate action.

  21. May a district unilaterally alter the status quo of a mandatory subject of bargaining after term of a collective bargaining agreement has expired? Generally, no. Following the expiration of a collective bargaining agreement, an employer is prohibited from unilaterally altering the status quo of mandatory subjects of bargaining.

  22. May a district unilaterally alter the status quo of a subject that is an inherent managerial right during the term of an agreement without bargaining over the decision? Yes. If the subject matter of the decision is an inherent managerial right, not involving a term or condition of employment, the school district may act unilaterally because the matter is considered a permissive subject because it falls within managerial prerogative.

  23. Is a district obligated to bargain over any impacts on terms and conditions of employment relating to implementation of a subject that is an inherent managerial right? Yes, but only if a timely demand for impact bargaining is made by the union which identifies specific negotiable effects on wages, hours, terms and conditions of employment. An effect is negotiable if it is direct and substantial.

  24. May a district proceed to alter the status quo of a subject that is an inherent managerial right before giving the union a reasonable opportunity to negotiate impacts? No. The district must afford the union reasonable time to impact bargain prior to implementation of a change.

  25. Is the district required to complete the entire impasse resolution process before proceeding to alter the status quo of a subject that is an inherent managerial right? No, although the district must allow for a reasonable opportunity for the union to identify and negotiate impacts, the impasse process contained in Section 447.403, need not be completed prior to modifying the status quo. After a reasonable opportunity to negotiate the impacts, the district may declare impasse, implement its decision, and thereafter proceed to complete the impasse process.

  26. Lets test our knowledge As has been done in the past, adjusting cafeteria workers hours up or down to meet needs (agreement is silent) Strictly enforcing language in the agreement for the first time that all mandatory extra-duty time for teachers shall be compensated at $20/hr. Adding a new extra-curricular activity that you want to pay the same as all of the comparable coaches

  27. Lets test our knowledge (contd) Adding hour of instruction to student day because it is in the lowest 300 Changing percentage of dependent health insurance premium contribution (not stated in the agreement) Changing health insurance benefits (e.g. deductibles, co-pays, etc.) where plan is mentioned by reference (e.g. the health insurance plan provided by the Board. ) Changing health insurance benefits (e.g. deductibles, co-pays, etc.) per recommendation of the long-established district insurance committee.

  28. What are prohibited subjects of bargaining? Provisions of an agreement are null and void from the outset only when they: 1. Involve unlawful subjects of bargaining, 2. Are contrary to a statute or constitutional provision, or 3. Seek to achieve a purpose contrary to public policy.

  29. What are examples of prohibited subjects of bargaining? Smoking on Campus. Binding interest arbitration. Just cause for non-renewal of probationary teachers.

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