Collective Bargaining: Bringing Education to the Table By: La Rae G. Munk, J.D.

An Analysis of Michigan School Labor Contracts  
and Recommended Improvements to Help  
Teachers, Schools, and Students

Executive Summary

The words "education reform" are frequently seen and heard on the editorial pages and airwaves of the news media. Mirroring a national discontent with student performance in the public school system, Michigan citizens have begun a discussion over the issues that affect the quality of their children’s education. These issues are many and complex, but one issue that is rarely mentioned or even considered in any discussion about education reform is public employee union collective bargaining.

This Mackinac Center for Public Policy study is the first ever to systematically analyze the hundreds of collective bargaining agreements for every school district in a state. It examines collective bargaining’s impact on Michigan public education and makes recommendations that school boards should incorporate into their union contracts to improve their ability to deliver quality education to students. The recommendations help school districts do the following:

• loosen rigid work restrictions on employees so that administrators can put the right teacher with the right training in the right classroom at the right time;

• free up scarce resources from counterproductive noneducational uses so that they can be redirected toward the primary goal of boosting student achievement;

• protect the constitutional rights of all employees so that liability exposure can be limited and costly financial and legal penalties from employee lawsuits avoided; and

• maintain the trust of parents and taxpayers in the local community by providing quality education while wisely managing public resources. 
  
 

Part I of this study provides a background to collective bargaining in Michigan, including its history, the laws that have shaped and are shaping it (especially Public Act 112 of 1994), and the challenges it presents to school board members, parents, taxpayers, teachers, and students. Recommendations to school boards on what to bargain and what not to bargain are also included.

Part II analyzes collective bargaining agreements—obtained using the Freedom of Information Act—from each of Michigan’s 583 school districts. This part identifies eight key provisions that commonly hinder the educational process, and makes recommendations that school boards should adopt to improve their ability to provide the best education possible to their students. The eight provisions and recommendations are as follows:

• Management rights clauses. Every collective bargaining agreement should specifically detail the rights and responsibilities that remain vested in the school board. These clauses should affirm that school management is the school board’s responsibility.

• Exclusive bargaining representative clauses. Exclusive representation means that the school district must deal solely with the recognized or certified union regarding employee wages, hours, and terms and conditions of employment. School boards should not agree to any contract language that prohibits teachers from exploring opportunities with other professional organizations, or requires union permission for them to do so.

• Union security clauses. Union security clauses subject school employees to mandatory union dues payments. School districts should not become union collection agents and enforcers by agreeing to the termination of employees who fail to pay dues money. Employees’ constitutional right to limit dues payments should be protected. Unions should be required to earn the voluntary financial support of school employees.

• "Just cause" discipline and discharge clauses. "Just cause" refers to standards of conduct that an employee must breach before being disciplined or discharged. Because "just cause" proceedings are subject to elaborate legal procedures, school boards should beware of language that expands the "just cause" concept too broadly to include probationary teachers, who are still being evaluated for their competency.

• Teacher evaluation clauses. School officials must be able to evaluate the competency and performance of each teacher in order to judge how well he uses his skills to help students learn and achieve. School boards must ensure that teacher evaluation language serves primarily to avoid any potential harm to students from unqualified or otherwise unfit personnel remaining in the classroom. 

• Seniority-based salary schedules. Most Michigan public school teachers are paid according to their years of experience and level of education. School boards should replace seniority-based salary schedules with performance-based pay scales that reward outstanding teachers and encourage innovation.

• Health care benefits. Teacher salaries and benefits take up an average of 82 percent of school district budgets. School boards should seek opportunities to competitively bid employee health benefits and channel the savings into the classroom.

• Class size clauses. Proposals to reduce student-to-teacher ratios are costly, needlessly restrictive, and have not been proven to significantly improve student performance. School boards should decline to negotiate class size limits. 

Part II also reviews seven court rulings on collective bargaining agreement issues and advises school districts how to avoid contract provisions that may expose them to costly legal and financial penalties resulting from employee lawsuits. Employees’ workplace rights are explained so school districts can understand their role in protecting those rights.  

Part I

The State of School Collective Bargaining 

1. Introduction

No one who follows education news can ignore the spate of surveys showing that students in the United States lag behind many of their international counterparts in their understanding of basic academic subjects. This trend has led to a general disenchantment with America’s public school system. In Michigan as in other states, reform of this system has become a hot topic of discussion among parents, teachers, administrators, elected officials, and other concerned citizens. These discussions take into account many issues involving the quality of public education services. One issue frequently neglected is the critical role that collective bargaining plays in the delivery of those services.

Effective delivery of education services requires that school administrators be able to put the right person with the right training in the right place at the right time. A collective bargaining agreement which unreasonably restricts school administrators’ ability to meet these obligations in a timely and effective manner impedes the delivery of quality education and handicaps not only administrators but also teachers themselves. Every hour of every school day, collective bargaining makes a difference in a school’s operations, its educational environment, and the ability of children to learn.

The discussion of education reform will become productive when citizens understand the impact of collective bargaining, and are willing to participate as informed consumers of public education services. Knowledgeable citizens can influence school boards. Whatever is negotiated at the bargaining table between representatives of school boards and teacher unions will powerfully influence the direction of public education for the foreseeable future.  

Public and Private Sector Collective Bargaining Are Not the Same

Michigan law requires that all public employers, including local school boards, allow their employees to form labor unions. It further requires that public employers bargain in good faith with the unionized employees’ representatives. Many view this situation as analogous to the bargaining that takes place between businesses and private sector unions, such as General Motors and the United Auto Workers. But there is a crucial difference between public sector (government) and private sector bargaining.

That difference is consumer choice. In the private sector, if a business such as a grocery store were to negotiate a union contract that specified costly and cumbersome wages and work rules that drove up the price of the store’s goods, consumers could and would choose to shop at a different store with lower prices and better service. This competition forces the private sector labor unions to either be reasonable in their demands or risk bankrupting the business and losing employment for their members.

With public sector (i.e., government) bargaining, there are no such competitive forces. If a state negotiates a contract with state employees that establishes excessive wages and inefficient and bureaucratic work rules, taxpayers would have no alternative provider of state services. Short of moving to another state, they could not choose to drive on lower cost roads, support a less expensive prison system, or seek options in other functions of state government. Citizens, therefore, are forced to pay the price through their taxes, or some must spend their days lobbying public officials for change—an expensive and time-consuming process that is difficult for most hard-working citizens. 

Unlike consumers in the private sector, taxpayers cannot easily "vote with their feet" to choose a better service provider. Public sector unions therefore experience little external pressure to moderate their demands. This is one reason why the salaries and benefits of government employees are often higher than those of employees performing comparable work in the private sector.

Public School Collective Bargaining Must Change to Stay Relevant

Public education is sure to undergo many changes in the next few years, given the present discontent with student performance. The collective bargaining process will have to change simultaneously if it is to continue to play an influential role in education. William G. Keane, a Michigan public school superintendent for 23 years, recently noted, 

Collective bargaining for educators is almost certainly entering a very different era. The economic, political, and social contexts in which American public education will operate in the future are unlikely to be anything like the environment of the past 30 years. As an artifact of the present educational system, collective bargaining will have to change with the system itself or become a useless and irrelevant appendage.

Through understanding how collective bargaining works, participants in the process can ensure that the focus remains on what is best for individual teachers, administrators, and students. For Michigan, recent changes in the law give school boards and teachers more opportunity to effectively direct school operations with student achievement as the priority.  
 

Purpose and Methodology of This Study

The purpose of this study is to help parents, teachers, administrators, taxpayers, and school board members understand collective bargaining’s role in Michigan public education, and to recommend teacher contract language that promotes better teacher performance, more effective management decision-making, and improved educational opportunities for students.

This study analyzes Michigan’s K-12 public school collective bargaining agreements, and identifies eight key contract provisions that can be improved to help school districts provide a better quality education to their students. The agreements were obtained from school districts by using the Freedom of Information Act.

It is the only study ever to systematically analyze the hundreds of collective bargaining agreements of all the school districts in a state. 

ENDNOTE: Districts operating under expired contracts were included in the analysis to the extent possible, using information from the last ratified agreement. Data were not available from districts currently engaged in negotiating. Text references to actual contract language typically do not identify specific schools. (The author may be contacted for a list of the contracts containing specific language cited in this study.)

Comparative data regarding the costs of these specific contract language provisions and actual costs of administering the collective bargaining agreements were obtained from school districts of various sizes.  

Teacher salary schedules were reviewed to determine the spread between the base salary and the top step, and the economic impact of the step system. Also, teachers' salary and seniority were compared with their education and years of experience. 

The collective bargaining process is often shaped by the decisions of administrative agencies and federal and state courts. Key court cases applicable to collective bargaining, which appear to have been ignored in many contracts, were identified and discussed to inform employees, school boards, and administrators of their legal rights and responsibilities. 

This study further compares the costs of various fringe benefits packages available to school districts. Agreements concerning fringe benefits are a significant part of collective bargaining. Due to changes in school funding, school districts are looking for more cost containment measures. 

Finally, this study was reviewed by school board members, superintendents, management and union negotiators, school attorneys, and other professionals working in the education field to ensure accuracy. 
  

2. The History of Collective Bargaining

For the first hundred years of American public education, collective bargaining for teachers was nonexistent. Government school teachers enjoyed employment protection through individual state civil service laws. 

During this time, many government school teachers and administrators became members of a professional organization called the National Education Association (NEA), to which the words "unionism" and "strike" were abhorrent. 

It was not until the early 1960s that the NEA’s philosophy shifted away from that of a professional organization toward that of a trade union. Two important events occurred at that time to encourage this. 

In 1961, the United Federation of Teachers (UFT), an organization modeled after the labor unions of the industrial sector, gained the power to collectively bargain for New York City teachers. In 1962, President Kennedy issued Executive Order 10988 approving unionization for federal employees, which inspired many state governments to do the same for state employees. 

This new union philosophy was sealed when, in the late 1960s and early 1970s, school administrators separated from the NEA. The NEA went on to become a full-fledged union for school teachers and support staff, including custodial, food service, and transportation employees.

The UFT secured for New York’s teachers a contract reflecting the industrial labor union model: uniform pay scales and seniority rights for teachers, limited classroom hours, and required union membership and dues deductions. This model continues to be followed today by the UFT’s parent union, the American Federation of Teachers (AFT), and the NEA, and their affiliates in each state, including Michigan. 

Michigan Law Opens Door for Public Collective Bargaining Agreements

In 1947, the Michigan legislature passed Public Act (PA) 336, the Public Employment Relations Act (PERA), which allowed state employees for the first time to organize and enter into collective bargaining agreements. Prior to PERA’s enactment, recognition or bargaining with a public sector union was illegal. 

However, the growth of government employee unions did not really begin until after Executive Order 10988. In the mid-1960s, aggressive lobbying efforts by the NEA and AFT in Michigan resulted in the 1965 passage of PA 379, which fundamentally revised PERA.

PA 379 eliminated the penalties for public employees who went on strike. Previously, government employees who violated PERA were considered to have terminated their employment. Though these new amendments to PERA did not legalize strikes by government employees, they substantially weakened the ability of public employers to withstand the pressure from union-initiated work stoppages.

The newly revised PERA of 1965 served as a focal point for teacher union organizing. The NEA’s Michigan affiliate, the Michigan Education Association (MEA), was officially recognized as a bargaining representative, and Michigan teachers soon became the first major state employee group to organize under the new statute. 

Other government employee bargaining representatives quickly moved to establish the legal privilege of bargaining exclusively for a group of public employees. The MEA abandoned its image as a professional educator organization in favor of the trade union model already adopted by the AFT. 

The AFT’s union image, meanwhile, caused its organizing attempts to be met with more resistance as teachers sought to maintain the professionalism long associated with teaching. (This same controversy has re-emerged today as the NEA recently voted on a merger with the AFL-CIO-affiliated AFT. The proposed merger was overwhelmingly rejected by delegates from the NEA’s state affiliates, including the MEA.)

Despite the controversy over image, by 1968 more than three-quarters of Michigan’s school districts had either voluntarily granted recognition to a representative teacher organization, or granted such recognition following a representation election. 
  

A String of Illegal Teacher Strikes

Although illegal, teacher strikes and other work stoppages became more frequent as the unions sought to tilt control away from school management. In 1966, the first full year after Michigan teachers began establishing bargaining units and taking steps to organize, nine school districts experienced their first teacher strikes. By 1967, 36 school districts did not open school on time. 

Some districts were forced to obtain injunctions in order to open their schools. Others experienced work stoppages for extended periods of time. Still others suffered the resignation of their entire teaching staffs. School boards were unprepared to confront these situations; as a result, many of them bargained away their responsibilities without even realizing it. 

This new adversarial relationship between district officials and teachers had an immediate effect on the resources available for education. The most striking was the doubling of annual percentage increase in teacher salaries in the first year of collective bargaining, followed by a tripling in the second year.  

Public Act 112 of 1994

In 1994, the Michigan legislature passed PA 112 which, among other things, amended PERA to re-establish penalties for government employee work stoppages. It also removed certain subjects from the scope of mandatory bargaining, giving school boards and administrators greater control. 

School officials have hailed PA 112 as a sorely needed remedy to an unfair, union-favored bargaining system, while unions challenged these new amendments to PERA in court. In 1995, the MEA and AFL-CIO sought to have the law declared an unconstitutional violation of the free speech and free association rights of their members. The Michigan Supreme Court, in rejecting the unions’ challenge, held that the obligation of public employers to bargain is "imposed by statute and may be limited by statute." 

Since the passage of PA 112, there have been no strikes by Michigan teachers. In Saginaw, which suffered six strikes between 1967 and 1990, teachers recently acknowledged that because of the economic penalties imposed under PA 112, they have stayed in the classrooms. 

PA 112 has many new and important implications for school boards bargaining with public employee unions. These implications are discussed throughout this study. 

3. Fundamentals of Collective Bargaining

There are certain basic principles that, when understood, help school board members and other citizens deal effectively with collective bargaining issues.

Collective bargaining topics fall into one of three legal categories: mandatory, permissive, and prohibited. Under PERA, public employers are obligated to bargain with the employees’ representative over only those subjects which are deemed mandatory, such as work-rules, seniority and promotion, and grievance procedures. 

The collective bargaining agreements in many Michigan school districts contain language which exceeds the scope of these mandatory subjects. Non-mandatory, or "permissive," topics of bargaining may still be bargained, but the school board’s only legal responsibility consists of carrying out mandated statutory obligations.

The Michigan Supreme Court explains the legal obligation, or "duty," to bargain this way:

The primary obligation placed upon the parties in a collective bargaining setting is to meet and confer in good faith. The exact meaning of the duty to bargain in good faith has not been rigidly defined in the case law. Rather, the courts look to the overall conduct of a party to determine if it has actively engaged in the bargaining process with an open mind and a sincere desire to reach an agreement. [Citations omitted.] The law does not mandate that the parties ultimately reach agreement, nor does it dictate the substance of the terms on which the parties manifest such an attitude and conduct that will be conducive to reaching an agreement.

In other words, school districts are not required to bargain over every topic presented in union proposals, and there is no requirement that compels either party to agree to a proposal or make a concession. The obligation to bargain imposed by PERA on public employers and bargaining representatives is met when the parties bargain in good faith over the mandatory subjects defined by statute and case law. 

Mandatory Subjects of Bargaining

Mandatory subjects of bargaining are those subjects embodied in the statutory language of "wages, hours, and other terms and conditions of employment." The Michigan Supreme Court provides a list:

Such subjects as hourly rates of pay, overtime pay, shift differentials, holiday pay, pensions, profit sharing plans, rental of company houses, grievance procedures, sick leave, work-rules, seniority and promotion, compulsory retirement age, and management rights clauses are examples of mandatory subjects of bargaining.

Health care benefits are also mandatory subjects of bargaining. Other mandatory subjects of bargaining include the following: 

• class loads;

• selection of textbooks;

• retirement incentive plans; 

• subcontracting out exclusive teacher bargaining unit work;

• instructional time; 

• extracurricular duties; 

• schedule changes in preparation time and length of the school day; and

• the criterion and format of teacher evaluation. (Frequency of evaluations, however, need not be negotiated.) 
  

Since Michigan public employees are not permitted to strike, the Court has applied a more expansive interpretation of what constitutes a mandatory bargaining subject, concluding that a subject is mandatory when it has a direct effect on the employment relationship. 

Once a specific subject has been determined to be mandatory, the parties are required to bargain over it; neither party may unilaterally change the language or resulting conduct until an impasse is reached. "Impasse" is defined by the courts and administrative agencies (which oversee labor relations) as a continuing effort to negotiate without a change in position. The Michigan Employment Relations Commission (MERC) decides on a case-by-case basis whether an impasse has been reached. MERC considers an "impasse" to be the point at which the positions of the parties have become so entrenched that no further bargaining would be productive. 

At no time is either side required to accept the other’s proposal or compromise in a way that may be harmful, in either the short or long term, to the district or teachers. By declaring an impasse, however, the bargaining parties do not necessarily meet the legal standard required before a particular proposal can be unilaterally implemented. The obligation to bargain continues: An impasse only suspends bargaining on the particular subject until there is a change in circumstances or in the position of one of the parties. 

Sometimes the impact of a school board’s decision is a mandatory subject of bargaining, even though the decision itself can be made unilaterally by the board.

Some subjects of collective bargaining appear to be within management’s unilateral control, but affect the employment relationship. The U. S. Supreme Court has developed a test to balance the interests of the parties in these instances. The balancing test establishes that the obligation to bargain exists when the "benefit, for labor-management relations and the collective bargaining process, outweighs the burden placed on the conduct of the business."

Though these subjects seem all-encompassing, management decisions which go to the heart of controlling the school district are not considered mandatory subjects. Education policy, for example, has been determined not to be a mandatory subject of bargaining. 

Those subjects which are not considered mandatory may be either permissive or prohibited subjects of bargaining. 

Permissive Subjects of Bargaining

Permissive subjects of bargaining are those over which bargaining is neither compelled nor prohibited. Neither party is required to agree to proposed language that is a permissive subject, and the matter cannot be pursued to the point of impasse. Although the parties may discuss permissive subjects and try to reach agreement, neither may, at any time, insist on the subject being incorporated into the contract. 

Decisions which are essential to the existence of the school district or which only indirectly affect wages, hours, and employment conditions are considered permissive subjects of bargaining. 

Examples of permissive bargaining subjects include the following:

• elimination of any programs being transferred to an intermediate school district;

• issuance and return dates of teacher contracts; 

• recruiting standards; and 

• formulation of new positions.  

Also, peer review, teacher protection, and appointment of curriculum committee members are all permissive subjects of bargaining because they are only indirectly related to essential terms of employment.

Once language is contained in a collective bargaining agreement, it cannot be changed unless there is mutual agreement or the contract expires. School boards should understand that the inclusion of permissive subjects in collective bargaining agreements needlessly binds school management and may reduce or eliminate flexibility in decision-making. This flexibility is vital to management’s ability to implement creative or innovative new methods and programs. 

It is much easier to keep language out of a teacher contract than to remove it later. Accordingly, school boards should not negotiate or include in the agreement any the following:

• maximum class size;

• any issue not exclusively related to teachers;

• maintenance of school standards;

• grievances, as a general aspect of employment;

• the union’s code of ethics as the standard of professional conduct; and

• any clauses that substantially restrict normal board operations.  
  

School boards must carefully weigh the consequences of refusing to bargain over some subjects presented by unions. While failure to bargain over mandatory subjects can result in unfair labor practice charges and legal fees, failure to bargain over permissive subjects can result in loss of teacher morale, union-initiated media campaigns, and pressure tactics on the local community. (Some school districts have faced such consequences when they refused to bargain over subjects that were prohibited.)

School boards may bargain over topics indirectly related to teacher employment, but should maintain the distinction between board policies and collective bargaining agreements. Board policies and collective bargaining agreements cover different aspects of school operations and must be kept distinct. Otherwise, the board may end up negotiating all of its policies, which is costly, inefficient, and time-consuming. Existing board policies should never be made a part of, or subject to, the contract.

Similarly, school boards should not include statutory requirements in collective bargaining agreements. For example, over 200 Michigan school contracts currently list the composition of site-based management committees, which is established by statute. The inclusion of such lists in the contract means that committee compositions cannot be changed during the contract period even if the authorizing statute is changed.

Furthermore, school boards should not include any contract language that obligates any party to abide by the U. S. and Michigan Constitutions and applicable federal and state law. Such language is superfluous because these laws automatically apply to the bargaining relationship. 
  

Prohibited Subjects of Bargaining

Prohibited subjects of bargaining are those subjects that, if included in a collective bargaining agreement, are unenforceable as a matter of law. For instance, a right protected under federal or state law cannot be bargained away in an agreement. Though the courts and administrative agencies have rendered few decisions defining prohibited subjects of bargaining, there is a general guideline; namely, an agreement cannot contain a topic which has been determined by law to be either of the following: 

• the sole responsibility of one party; or 

• illegal under federal or state law. 

A 1980 MERC decision provides an example of the latter situation. Grand Rapids teachers faced a mandatory assessment requiring the payment of a fee to a teachers’ assistance program fund. MERC determined that the fund was being used to support teachers during strikes which were illegal under PERA, and so ruled the assessment a prohibited subject. 

Prohibited subjects of bargaining should never be included in collective bargaining agreements; unfortunately, many contracts throughout the state contain them. Few public employees and school officials are knowledgeable enough to recognize which clauses in a collective bargaining agreement are prohibited and unenforceable by law, and consequently, they can easily be misled. In Michigan, MEA officials have been known to insist that certain prohibited subjects of bargaining remain in the contract. This leaves school districts with the impression that those provisions were enforceable. The following letter from an MEA official reveals the union's strategy and twisted reasoning. 
 

December 5, 1995
 

Superintendent, Public School

Dear Mr. Superintendent: 

This is to follow up our conversation this morning. PA 112 presents a dilemma when it comes to prohibited subjects of bargaining.

Since they are prohibited it is impossible to change or delete those sections, since that would involve bargaining. And bargaining is prohibited.

I believe, however, that the Michigan Court of Appeals did shed some light on that matter. They said: the subsections "evince a legislative intent to make public school employees solely responsible for these subjects by prohibiting them from being the subjects of enforceable contract provisions...."

Consequently, we must leave the language in the contract since we can't bargain it out, but it will, according to the Court of Appeals, be unenforceable.

I hope that answers the Board's concerns. Sometimes laws produce bizarre results!

Sincerely, 

Uniserv Director

Michigan Education Association

Although there are many prohibited subjects of collective bargaining, the following are specifically prohibited under PA 112 of 1994:

• Who is or will be the policyholder of any employee group insurance benefit;

• Establishment of the starting day for the school year and the amount of pupil contact time required to receive full state aid;

• Composition of site-based decision-making bodies;

• Decisions involving intra- or interdistrict open enrollment;

• Authorization of contracts to organize and operate public school academies (charter schools); 

• Decisions to contract noninstructional support services;

• Decisions involving use of experimental programs and staffing;

• Decisions involving use of technology to deliver educational programs and the staffing to provide the technology, as well as the impact of these decisions on individual employees and bargaining units;

• Use of volunteers to provide school services; and

• Additional compensation or work assignments intended to reimburse an employee for any monetary penalty imposed under PA 112. 

School boards should perform a careful review of all collective bargaining agreement language to insure continuing compliance with the law and applicable court decisions. An experienced labor relations specialist or labor attorney can provide a thorough, section-by-section contract analysis. 

4. Shortcomings of the Collective Bargaining Process

The collective bargaining process has many characteristics that tend to produce agreements that fail to meet the needs of school districts, teachers, and their students. The purpose of this section is to provide school board members, parents, teachers, and community members with an understanding of these negative characteristics and how they often affect the quality of a local school district’s educational product.

To avoid being manipulated during the bargaining process, school board members must be able to do the following: 

• understand collective bargaining, 

• know the needs of their district, 

• be aware of what any proposed contract says, and 

• consider the long-term effects on the district of any agreed-upon contract language. 

This last item is especially important, as many districts fail to consider what the consequences of negotiated language will be five or ten years down the road. 

School board members should therefore approach the bargaining table with the same level of professional ability, determination, skill, and understanding exhibited by full-time union negotiators. They should also involve the public in the process, constantly communicating the facts about the negotiations to parents, taxpayers, the school employees themselves, and other citizens. "Labor peace at any price" is simply an unacceptable and short-sighted approach.

The costs—administrative, educational, financial, or otherwise—of the collective bargaining process are discussed below. 

"Factory Model" Collective Bargaining is Not Well Suited to Quality Education

Collective bargaining, with its roots in the industrial, mass-production sector of the economy, operates under a "factory model" of bargaining whereby unions focus on securing for their members contracts with uniform benefits, working conditions, and salaries.

The factory model, however, does not work well for individual professionals working in an educational setting. Teachers are not assembly line workers and their "product" is not mass-produced interchangeable widgets, but individual, educated children.

The personal and individual interests of teachers are overridden by the factory model’s emphasis on the interests of the group. In fact, the professional needs of the teacher are seldom properly addressed within the standard terms of a collective bargaining agreement. For example, consideration of individual teacher salaries and terms of employment separate and apart from what the union negotiates is forbidden. All teachers, no matter how they perform, are paid on the same salary schedule. 

This uniform treatment of employees results in a loss of individual freedom, motivation, and productivity as the creative energy of teachers becomes diverted from the classroom toward union-related activities. Many quality teachers simply choose to leave their profession in favor of finding greater freedom to exercise their skills and abilities.

A recent example in Saginaw highlights the factory model approach of emphasizing uniform rules and procedures over individual needs and talents. Louise Harrison, a finalist for Michigan Teacher of the Year in 1989-90 and Michigan’s Creative Writing Teacher of the Year in 1992, requested a transfer to a different school within her district. The administration approved her request, but the local MEA affiliate blocked her transfer on the grounds that it violated seniority rules. Then-board member Ruth Braun noted with concern that the schools in Saginaw "can’t override the union and put our best teachers in positions that are in the best interests of students." 

Another consequence of applying the factory model to education is the creation of an atmosphere of antagonism between school districts and employee unions. This antagonistic aspect was recently confirmed in at least one Michigan district when former Saginaw school board president Thomas S. Tilot stated, "Based on our last three negotiations, we spent a whole lot of time in adversarial negotiations."

Former AFT president Albert Shanker explained the adversarial relationship between unions and employers this way: 

Union contracts represent some attempt to limit and curtail the powers of management. 

. . . [t]he interest of unions, as long as you have a factory model, is in seeing to it that salaries are adequate and that they are not subject to some individual administrator who can use them politically or in a discriminatory way.  

The industrial or factory model of collective bargaining also does not serve the students of unionized teachers well. As Seattle, Washington Superintendent John Stanford was quoted as saying, "We lost our way when we became more interested in the employment of adults than in the education of children." Even Albert Shanker conceded that, "Once you leave the factory model and start thinking about education, student outcomes, and accountability, there are ways to improve upon the present system."

Scholarly research shows that effective schools are based on flexibility and individual autonomy. But collective bargaining in general, and the factory model in particular, focuses primarily on group interests, and on one-size-fits-all seniority, transfer, and salary schedule contract provisions (which are discussed more completely in Section 1 of Part II). 

The factory model is detrimental to teachers and ultimately to the students who learn from them. 

Standard or "Pattern" Contract Language Does Not Meet the Needs of Individual Schools and Districts

The nation’s two largest teacher unions, the National Education Association (NEA) and the American Federation of Teachers (AFT), encourage their affiliates throughout the nation to use standard or "pattern" contract language in their collective bargaining agreements. Such pattern language appears in the collective bargaining agreements of all 583 Michigan school districts. 

These pattern agreements, however, do not adequately meet the unique educational needs of individual schools and districts. For example, what may be an appropriate contract provision in an inner-city Detroit school may not be helpful or right for a rural district in the Upper Peninsula. 

Collective Bargaining Politicizes Local School Boards

School board members must take an oath that requires them to carry out the obligations of their offices in the best interest of the public. However, the collective bargaining process frequently puts them at odds with their statutory and ethical responsibilities. 

Ronald Booth sums up the slings and arrows that board members must face when combining labor relations, human relations, and politics:

[I]f unions do not get what they want at the bargaining table, board members and superintendents can find themselves in jeopardy. If the politics of impasse or strike doesn’t get the superintendent fired, then sometimes it’s the loss of school spirit that often follows the strike or the teachers’ refusal to maintain acceptable relationships with students and parents.

Even without the rigors of bargaining, superintendents can seal their own doom through neglect of faculty attitudes. ... Today’s teachers not only talk about their problems out of school, they organize campaigns to unseat board members and to remove the superintendent.

That leaves school boards and superintendents on the horns of this dilemma: How do they protect the public from the unions without making themselves the sacrificial lambs?

Some boards have said, let’s forget the public and give the unions what they want. Other boards have stood fast against the union’s demands and been ousted at the next election, soon followed to the sidelines by their superintendents.

Clearly, what is called ‘collective bargaining’ in the private sector is not necessarily the same thing in the public sector. 

Unions routinely recruit pro-union candidates to run for public office. They then use their considerable resources to get these candidates—who often do not reveal their union support while campaigning—elected to school boards. Former AFT member and 1993 National Teacher of the Year Tracey Bailey is a frequent critic of the unions and their political nature, calling them "special interests protecting the status quo" and pillars of "a system that too often rewards mediocrity and incompetence." 

Collective Bargaining Hinders School Management Decision Making

The agreements that arise from collective bargaining establish the respective rights of school management and the employee union. Usually, the more language that is included in an agreement, the more restricted the school board and administrators are in making decisions. 

Too many school boards have agreed to include in collective bargaining agreements subjects that hamper their ability to make timely and crucial decisions that affect the delivery of educational services. The end result is that administrators and teachers both become bound by a rigid and cumbersome set of work rules and procedures. 

Needlessly complex union and legal requirements have led to an ineffective and time-consuming accountability process for many districts. The burdensome contractual requirements for the evaluation, discipline, and discharge of employees have frequently lead administrators and school boards to determine that the cost of maintaining high standards of employee professionalism is just too high, leaving ineffective or even incompetent teachers in the classroom. 

Toward the end of his life, Albert Shanker recognized that accountability is essential to providing quality education:

The key is that unless there is accountability, we will never get the right system. As long as there are no consequences if kids or adults don’t perform, as long as the discussion is not about education and student outcomes, then we’re playing a game as to who has the power.

Collective Bargaining Inhibits Open Communication

The adversarial and political nature of the collective bargaining process frequently distorts or stifles communication among key groups in a school district. School board members and administrators, fearful of being charged by the union with unfair labor practices, are often wary of speaking openly and directly with teachers. Taxpayers and members of the community are frequently unaware of, or misinformed about, what is negotiated between their elected school boards and the teacher unions.

For example, unions (and sometimes district negotiators) often make a concerted effort to communicate only the general employee salary increases and not the total bargained increase in compensation. Consequently, Michigan citizens tend not to have a clear understanding of the true employee compensation costs for their districts, which typically range between 80 and 90 percent of a school district’s budget.

This lack of communication has led analysts to argue that collective bargaining has resulted in too much of the public interest being given away or ignored. 

More public and parental involvement in the bargaining process is key to ensuring that schools continue to deliver a high quality education. But while the state of Michigan does permit bargaining to take place publicly, few districts open their negotiations to the entire community. Many other states are now requiringcollective bargaining to be done in public. William Keane notes, 

The public may tolerate being left out of the process when things are working smoothly. When trouble results, they will be heard. So-called sunshine laws in Florida and other locations, which require that collective bargaining be carried out in public, are on the books because the public interest can be ignored only so long. 

Collective Bargaining Fosters Numerous Conflicting Agendas

The collective bargaining process involves more than just the interests of school board members and teachers. Many special interests are often represented at the table, each with its own agenda and goals it wants to accomplish. The goals of these various interests are seldom the same. 

The agendas on the union side, for example, may include the national union affiliate’s agenda (NEA or AFT), the state union affiliate’s agenda (MEA or MFT), the local union representative’s agenda, the local bargaining unit agenda, and the bargaining team agenda. The school district, on the other hand, has the school board’s agenda, the superintendent’s agenda, and the administration’s agenda to consider. 

The presence of so many different agendas often leads to miscommunication and miscalculation. For example, some school boards hold the superintendent responsible for negotiations, but his agenda may not match the board’s and, as a result, he may attempt to "buy labor peace" by agreeing to a contract which may not be in the best interest of the public or the students. Sometimes the superintendent and union negotiator exceed their authority during negotiations or give too little time for the board to properly review the terms they have negotiated. These are common ways that a school board finds itself stuck with a contract it did not necessarily agree to or want.

Teachers in some districts have attempted to alleviate these problems by separating from their state and national affiliate parent unions in favor of bargaining for themselves. These locally organized teacher unions have determined that collective bargaining fails when there is an imbalance of power at the negotiating table because one side, the union, is professionally trained while the other, the school board, is composed of community lay people. As the president of one (Michigan) local teacher union said, "Being independent allows us to be reasonable with people in the community who have as much at stake as we do."  

Collective Bargaining and Contract Administration Are Expensive

Every school district pays a high price for collective bargaining. 

Financially, the highest cost associated with collective bargaining is in employee compensation packages. In 1997, the Michigan Association of School Boards reported that statewide salary increases for education employees equaled 2.6 percent. However, this figure does not take into account the total compensation figure, which should include items such as fringe benefits, paid leave, additional duty pay, step increases, and "longevity" (see Section 1 of Part II for a discussion of the structure of teacher salaries). With these factors included, the actual average increase in teacher salaries and benefits exceeded 8.5 percent.

Another cost of collective bargaining comes from the time spent negotiating. For districts where the superintendent is expected to be part of the negotiating team, the time spent in preparation and bargaining adds as much as 80 to 100 additional hours to his workload every contract period, not counting the additional overtime for any secretarial, support, and administrative personnel. Districts that hire professional negotiators on either an hourly or per session fee basis pay between $5,000 and $15,000 for each contract period.

Even the contract document imposes small but significant costs on schools, unions, or both. The cost to prepare, print, and distribute negotiated collective bargaining agreements to school officials and employees averages about $600 per contract period, and some districts with fewer than 200 teachers have reported costs in excess of $2,000. Some districts also have additional expenses associated with keeping the community at large informed about the negotiations and their outcome.

Still other districts have incurred expenses arising from efforts to make the process less emotionally draining and adversarial. One Michigan school district and its teacher union said they paid $2,000 per day plus expenses for a labor relations attorney to guide them through a "collaborative bargaining" approach to their 1998 labor negotiations.

There are certain unavoidable costs to administering contracts when numerous parties are involved; however, taxpayer funds allocated for educational goals have too often been diverted to pay for negotiations, general contract administration, and the consequences of poorly bargained language. School officials who carefully prepare for collective bargaining and negotiate wisely can not only reserve these resources for their intended purposes, but also maintain the trust of the parents, taxpayers, and students in their community. 

Overcoming the Shortcomings of Collective Bargaining

The shortcomings inherent in the collective bargaining process help explain why there is much room for improvement in Michigan school district collective bargaining agreements. Part II of this study provides an analysis of those agreements and recommendations for improving the ability of public schools to provide quality education by making positive changes to the language contained in them.

PART II

Advancing the State of School Collective Bargaining 

1. Improving the Language in Collective Bargaining Agreements

Every word in a collective bargaining agreement is critical. Each negotiated clause and phrase can have a tremendous impact on a school district’s operations, the morale of its employees, and ultimately, the education of the children entrusted to it. Because arbitrators must interpret a contract based primarily on its language, every district’s negotiating team should prepare by thoroughly reviewing all contract language to determine current applicability.

This analysis is based on a review of the collective bargaining agreements from each of Michigan’s 583 public school districts. Although there are numerous problems with the agreements, this section focuses on eight key areas that present the greatest opportunity to significantly improve the agreements and thereby improve educational quality. Each area is discussed in detail below, along with recommendations for strengthening, removing, or otherwise improving contract language. 

Improvement #1: Strengthen Management Rights Clauses

Every collective bargaining agreement should specifically detail the rights and responsibilities that remain vested in the school board. As elected officials, school board members form the only public body with the legitimate responsibility and authority to operate a school district; neither teachers nor unions have been granted authority by the electorate to undertake this responsibility. 

School board members are held accountable by parents, taxpayers, and community members for the operation of their schools. Efficient operation requires that school boards never relinquish their ability to make decisions in the management of the district for which they are responsible.

Analysis

The management rights contract language, or "rights of the board of education," is the contract provision that affirms school board control over the operation of the school district. The Michigan legislature has provided the framework for management rights by statute:

A public school employer has the responsibility, authority, and right to manage and direct on behalf of the public the operations and activities of the public schools under its control.

The contracts reviewed by this study show that many school boards do not fully understand how their control can be relinquished by poor wording of the very terms meant to define their right to exercise control. 

A school district may exercise only those management rights that are explicitly established in the collective bargaining agreement. Arbitrators may determine that any action a school district takes outside of the rights clearly defined in the collective bargaining agreement constitutes a unilateral change in employment conditions. They may also interpret imprecise language, such as that found in the following examples, as providing inadequate notice to the union of the specific rights reserved by the board.

Here is an example of a poorly worded yet standard management rights clause found in a great number of Michigan school districts’ bargaining agreements:

The Association [union] recognizes that except as specifically limited or abrogated by the terms and provisions of this Agreement and to the extent authorized by law, all rights to manage and direct the operations and activities of the School District and to supervise the teachers are solely and exclusively vested in the Board.

The broad wording of this management rights provision fails to protect the role and responsibility of the school board and allows the union to define the school board’s rights in the agreement. Management rights clauses should instead be written from the perspective that the school board is responsible for school management except as specifically limited by the agreement. 

A second example of overly broad language is that which mirrors only the statutory framework:

The Board, on its own behalf and on behalf of the electors of the District, hereby retains and reserves unto itself, without limitation, all powers, rights, authority, duties and responsibilities conferred upon and vested in it by the laws and the Constitution of the State of Michigan and of the United States.

Some districts have attempted to protect their employees’ individual rights within the framework of a group agreement by modifying their authority with the following phrase:

The Board of Education in this contract does not seek in any way to deny or restrict any employee’s rights established under the Michigan General School Laws or any other laws or regulations which apply.

This clause could well lead an arbitrator to determine that a disputed management decision places an unwarranted restriction on the individual rights of a teacher protected by this language, even though the decision itself is properly within the purview of management. 

The wording of a management rights clause can also restrict the very rights it is intending to define, as in this example: 

The Association recognizes and agrees that the School District has the exclusive right to govern all aspects of operating the School District, including the right to discipline for just cause and to direct its entire work force at all times. 

Here, the wording may bind the school district to the lengthy "just cause" proceedings (discussed below) for the discipline or discharge of all probationary employees as well as tenured teachers. Arbitrators may apply this interpretation even when a separate section of the contract states that termination or failure to re-employ a probationary employee is not subject to the grievance procedure. This language can still result in lengthy grievance proceedings and defeat the purpose and intent of probation for new employees.

Recommendation

School districts should adopt strong management rights clauses that explicitly designate the rights reserved to the school board, administrators, and management.

A school district’s best defense against union charges of unfair labor practices is to clearly state management’s rights in the collective bargaining agreement. Ambiguous wording may invite courts and administrative agencies to find that the school administration has waived its right to make unilateral decisions over a subject in dispute. Where the terms of the contract explicitly state the employer’s management right to take an action disputed by the union, the Michigan Employment Relations Commission has ruled that the union waived its right to bargain the matter.

Following is an example of a strong management rights clause that provides clear notice of the rights retained by the school board. This clause should be placed at the beginning of the agreement so that the contract flows naturally from the express rights laid out in the clause.

A. Nothing in this Agreement is to be interpreted as constituting a waiver of the Board of Education’s rights and responsibilities to create and maintain schools that reflect its public’s wishes. The intent of the Agreement is to establish wages, working hours, and conditions of employment with the Association.

B. Therefore, the Board on its own behalf and on behalf of the electors of the District, hereby retains and reserves unto itself, without limitation, all powers, rights, authority, duties, and responsibilities conferred upon and vested in it by the law and the Constitutions of the State of Michigan and the United States including, but without limiting the generality of the foregoing, the right to:

1. The executive management and administrative control of the school system and its properties and facilities;

2. Hire all employees and to determine their qualifications and fitness for employment and conditions for their continued employment, or their dismissal;

3. Establish grades and courses of instruction, including special programs, and to provide for athletic, recreational and social events for students, all as deemed necessary or advisable by the Board;

4. Determine overall goals and objectives as well as the policies affecting the educational program;

5. Select textbooks, teaching materials, and teaching aids;

6. Determine class schedules, class size, hours of instruction, and assignment of teachers with respect thereto;

7. Determine the services, supplies, and equipment necessary to continue its operations and the methods, and processes of carrying on the work;

8. Adopt reasonable rules and regulations;

9. Determine the location or relocation of its facilities, including the establishment or relocation of new schools, buildings, division or subdivisions thereof, and the relocation or closing of offices, departments, divisions or sub-divisions, buildings, or other facilities;

10. Determine the financial policies including all accounting procedures, and all matters pertaining to public relations;

11. Determine the size of the management organization, its functions, authority, amount of supervision, and table of organization; and

12. Direct the working forces, including the right to hire, promote, discipline, transfer, and determine the size of the workforce. 
  
 

C. The exercise of the foregoing powers, rights, duties, and responsibilities by the Board and the adoption of policies, rules, regulations, and practices in furtherance thereof, shall be the exclusive prerogative of the Board except as limited by the specific terms of this Agreement.Improvement #2: Limit Exclusive Bargaining Representative Clauses

Exclusive representation means that the management must deal solely with the recognized or certified union regarding employee wages, hours, and terms and conditions of employment.

Analysis

When a public employer recognizes a collective bargaining representative as the agent representing the employees in a defined bargaining unit, PERA grants exclusive recognition to that agent to act for those employees on issues involving wages, hours, and terms and conditions of employment. In addition to including such recognition, more than 500 contracts contain a separate provision by which the school board agrees not to negotiate with any other teacher organization. 

In other words, if a school board wished to contract with a math, science, or professional teacher organization for the purposes of professional development for its staff members (a term of employment), the board must first obtain the union’s permission.

Recommendation

School boards should remove exclusive bargaining representative clauses that require union permission before employees can explore opportunities with other professional organizations. 
  
 

Improvement #3: Remove Union Security Clauses

Many school board members and other citizens mistakenly believe that union membership is required for all teachers working under a collective bargaining agreement. The truth is that there is no statute that requires teachers to either become union members or pay union dues in the absence of a contractual agreement between a school district and union that contains a "union security clause."

When a union security clause is included in a collective bargaining agreement, it forces school employees to pay union dues. School boards who agree to such a clause become union financial enforcers, often by agreeing to fire any employee who fails to pay dues money. This arrangement allows the two major teacher unions, the NEA and the AFT, and their state affiliates, to forcefully take more than $800 million per year from the country’s teachers without their voluntary consent. 

Analysis

Union security clauses undermine union accountability by forcing teachers to financially support the union whether it has earned their support or not. Employees working under a collective bargaining agreement with a union security clause fit into one of two categories: full union members or "agency fee payers." Agency fee payers are those employees who decline to join the union but are required to pay a "service fee" (or "agency shop fee") to the union for the costs of collective bargaining representation services.

The statute governing union security agreements expressly affirms that dues or service fee payment is not a mandatory condition of employment, but it does not preclude school boards from negotiating a dues or service fee provision if they choose. In practice, most school districts require their employees to pay dues or a service fee, and provide that the money be involuntarily deducted from the paycheck of any employee who fails to pay. 

Dues and service fees in most districts presently average two percent of the negotiated base minimum of each teacher’s salary: A teacher with a $30,000 base salary must therefore pay $600 annually in local, state, and national union affiliate dues.

Compulsory unionism for public school employees brought about by union security clauses has had profoundly negative effects on school districts. It has lowered teacher morale and professionalism which in turn has hurt student achievement in the classroom. A 1996 study conducted by Harvard professor Caroline Hoxby found that, "Teachers unions increase school inputs but reduce productivity sufficiently to have a negative overall effect on student performance." Hoxby also discovered that in addition to having lower student achievement, unionized districts also suffer from higher student dropout rates.

Currently, every teacher contract in Michigan includes a union security clause whereby the school district agrees to act as the collection agent for union dues. Most districts additionally act as union record keepers by transmitting payments to the local union and often separately to state and national affiliates. Standard language in over 500 current contracts further provides that 

In the event there is a change in the status of the law, so that mandatory deduction from wages pursuant to the paragraph above is prohibited, the employer, at the request of the Association, shall terminate employment of a bargaining unit member that refuses to authorize deduction of the representation benefit fee…. The parties expressly agree that failure of any bargaining unit member to comply with the provisions of this Article is just cause for discharge from employment.

In other words, even if involuntary dues deduction is prohibited by a change in law after the contract is bargained, the school board still agrees to fire any employees failing to pay union dues.

However, dues-paying teachers have the following constitutionally protected rights:

• To pay only those costs directly attributable to collective bargaining and negotiations which provide a direct benefit to them; 

• To object to the amount of agency shop or service fee required; and

• To have that amount reviewed by an impartial decision maker.  
  
 

School districts have an independent responsibility to inform their employees about their rights, but a significant number of current contracts do not mention these rights. More than twenty collective bargaining agreements in Michigan do not even inform teachers of their right to refrain from becoming full dues-paying union members by choosing instead to pay only an agency shop or service fee. 

With few exceptions, those contracts that do advise teachers of the right to object limit teachers’ means of protecting those rights. Over 150 Michigan collective bargaining agreements contain a standard notification clause as follows:

Pursuant to Chicago Teachers’ Union v. Hudson, 106 S. Ct. 1066 (1986), the Association has established a "Policy Regarding Objections to Political-Ideological Expenditures—Administrative Procedures." Those administrative procedures (including the timetable for payment) apply only to non-Association bargaining unit members. The remedies set forth in those procedures shall be exclusive and, unless and until such procedures (including any administrative or judicial review thereof) shall have been availed of and exhausted, no dispute, claim, or complaint by an objecting bargaining unit member concerning the application and interpretation of this article shall be subject to the grievance procedure set forth in this Agreement. 

This notification clause requires agency fee payers with dues disputes to exhaust internal union-controlled procedures—procedures established by the very union they are opposing—before the matter can be heard in other administrative or judicial forums. Only a small number of the collective bargaining agreements reviewed even provide the terms of the "Policy Regarding Objections to Political-Ideological Expenditures."

The May 1998 U. S. Supreme Court decision, Air Line Pilots Association v. Miller, has established that nonunion agency fee payers have the right to settle their dues disputes in the forum of their choosing, whether or not they have exhausted the internal union-controlled procedures. The Court held that when a union attempts to bind an agency fee payer to a dispute procedure not of his choosing, it frustrates his ability to exercise his constitutional rights; he is therefore free to pursue an impartial decision maker. 

The Miller case may have legal implications concerning the validity of teacher contracts that compel exhaustion of a union-controlled dues dispute process. (Please see Section 2 for a discussion of the Miller decision.)

Some current collective bargaining agreements mandate that the amount of the service fee paid by agency fee payers be the same as full membership dues. This is in direct violation of U. S. Supreme Court decisions which provide that objecting employees can be forced to pay only those charges directly attributable to collective bargaining.

Unions often negotiate contract provisions that require new (probationary) employees to immediately apply for full union membership—usually within thirty days of their start date—despite the fact that probationary employees receive only limited representation protection. The agreement in at least one district requires this application to be made within the first week of employment. No contracts, however, specify that the application is not required until the employee ceases to be on probation. 

Unions also frequently specify narrow time periods during which employees may resign their membership in favor of becoming agency shop or service fee payers. Unions may also limit the times when they will accept payment of service fees. If an employee were to challenge these practices in court, they would likely be ruled unconstitutional.

Almost every collective bargaining agreement stipulates that dues will be automatically deducted from employees’ paychecks from year to year, while those who object to this deduction must renew their objection annually. These provisions have the effect of limiting the number of objectors by making the act of objecting more burdensome.

Although PA 117 of 1994 requires unions to obtain annual consent from individual employees for the deduction of political action committee contributions, unions are unwilling to allow members that same latitude of choice over standard compulsory dues. Teachers must expressly agree each year to every other payroll deduction, but they are denied that right when it comes to union dues. Conversely, employees must annually notify the union in writing when they wish to be agency shop or service fee payers.

Recommendations

1. School boards should, through negotiations, remove union security clauses from their collective bargaining agreements.

The coercive and unfair nature of such clauses negatively affects school employees’ morale, productivity, and professionalism and, ultimately, student achievement. Eliminating them would alleviate these problems and return more money to the paychecks of hardworking teachers. Unions that excel in representing their members will have no difficulty attracting and keeping the voluntary support of those members.

Teachers themselves should explore all their options for representation. Members of unaffiliated independent teacher unions pay dues as low as $40 per year while enjoying the same rates of pay and benefits as those who are required to support state and national affiliates through higher fees. These independent teacher unions typically have the resources to provide the same membership services as the affiliated unions, including liability, legal representation, and professional negotiating. 

2. If the school board chooses not to eliminate the union security clause, it should change the agreement to reflect the board’s refusal to serve as union collection agent and record keeper. 

The school funds spent on these functions could be better directed toward education. Districts themselves can also be held liable under the Weaver v.University of Cincinnati court decision (discussed in further detail in Section 2 on page 43) for the amount of any dues illegally collected from employees. Some district contracts wisely provide that the school board will not be a party to any dues or service fee collection action the union may pursue.

School boards should uphold the rights of employees and protect themselves from liability by inserting language that protects from termination teachers who fail to pay union fees. Language that accomplishes this is found in a few existing agreements and specifies that "the payment of the service fee is a condition of employment: provided, that the non-payment of the service fee shall not cause the discharge of any teacher."

3. If the school board chooses not to eliminate the union security clause, it should ensure that any negotiated contract language affords the maximum constitutional protections to agency fee payers. This includes not binding them to an unfair, union-dominated dues dispute procedure.

Agency fee payers (nonunion employees) who object to the amount of the service fee they are compelled to pay are entitled to have their objections heard before an impartial decision maker. School boards should protect the rights of agency fee payers by inserting language into the appropriate area of the union security clause as follows:

Pursuant to Chicago Teachers’ Union v. Hudson, 106 S. Ct. 1066 (1986), public employees who object to the payment of union dues have a right to pay for only direct collective bargaining costs through the payment of an agency or service fee. Objecting fee payers have the right to have their objections heard by an impartial decision maker and to have their fees held in escrow until such dispute is resolved.

The Hudson decision upheld similar constitutional rights, and is discussed in Section 2.

4. If the school board chooses not to eliminate the union security clause, it should avoid bargaining contract provisions that needlessly limit or restrict employees’ freedom to resign from the union.

Provisions that restrict employee resignation from the union to a limited time period, such as one month out of the year, are constitutionally suspect and susceptible to legal challenge. The MEA represents to its membership that withdrawal of membership and designation for payment of the agency fee can only occur during a narrow window of time each year, during the month of August. This restriction has not been found to be constitutionally valid.

5. If the school board chooses not to eliminate the union security clause, it should avoid negotiating any language that requires the service fee paid by objecting nonunion employees to be the same as the amount of full union dues.

Requiring equivalent union dues and agency fees is in direct violation of U. S. Supreme Court decisions that hold that agency fee payers who object can be compelled to pay only those charges directly attributable to collective bargaining representation. 
  
 

Improvement #4: Limit "Just Cause" Discipline and Discharge Clauses

"Just cause" refers to contractually established standards of conduct that an employee must breach before he can be disciplined or discharged. Due process is the legal procedure instituted when an employer wishes to discipline or discharge an employee who has breached the "just cause" standard.

"Just cause" is distinct from an "at will" employment arrangement. "At will" means either party may terminate the employment relationship at any time for any reason. The "just cause" standard, on the other hand, is typically applied to employees who have a property interest in the employment relationship. Teachers who have received tenure status, for example, enjoy property rights in their employment relationships. 

Many school boards seem not to understand the implications of the "just cause" standard, as evidenced by the number of contracts that extend this standard to all employees in the bargaining unit—including probationary teachers who are still being evaluated for their competence. After all, it sounds reasonable that no employee should be disciplined or discharged unless there was both justice and cause. However, the "just cause" legal standard is not that simple. 

Analysis

The "just cause" standard and the resulting due process proceeding for employee discipline or discharge is a burdensome and time-consuming process for districts that wish to remove ineffective, unproductive, or even criminal teachers from the classroom. 

Under this standard, a school board can face increased and unplanned expenses in processing employee discipline and discharge matters, including substantial liability for teacher re-instatement or back pay in the event of an unfavorable arbitration or tenure ruling. 

Unions do have a legal obligation to represent their members when discipline or discharge is unwarranted or in violation of the collective bargaining agreement. However, the "just cause" standard has sometimes been stretched to include situations that make a travesty of procedural protections intended to guard good teachers from arbitrary and capricious decisions. 

One of the most outrageous examples took thirteen years of litigation and cost the Ann Arbor Public Schools district in excess of $350,000 in attorney fees and back pay for an ex-teacher who was imprisoned in Jackson for murder.

An employer must be able to answer "yes" to all seven of the following questions in an arbitration hearing to successfully sustain a "just cause" discipline or discharge decision:

• Did the employer forewarn the employee of possible disciplinary consequences of conduct?

• Was the rule or directive involved reasonably related to the orderly, efficient operation of the business?

• Before administering discipline, did the employer properly investigate to determine that the employee did violate or disobey the rule or directive?

• Was the employer’s investigation done in a fair and impartial manner?

• Through the investigation, did the employer obtain enough evidence to prove the employee was, in fact, in violation of the rule or directive?

• Was the rule, directive, and penalty applied fairly and without discrimination?

• Was the discipline applied reasonably related to the gravity of the offense and was the amount of discipline reasonable given the employee’s overall record? 
  
 

Some arbitrators have held that the standard of progressive discipline does not apply to certain offenses: alcohol on the job, theft, lying, cheating, and violations of criminal statutes reasonably related to the performance of the employer’s business operation. Any off-duty misconduct must also be reasonably related to the employer’s business purpose. 

School officials are often suspicious of the extent to which a union will pursue a matter and, as a result, may fail to discipline or discharge poor or disorderly teachers until well after their conduct has deteriorated seriously. School officials who fear legal action from unions may choose to retain teachers who are not effective or productive in educating students. They may also give large severance settlements instead of discharges to poorly performing teachers or supply good recommendations for poor teachers seeking employment at another school. 

The collective bargaining agreements in many districts extend the "just cause" discipline and discharge standard to cover probationary teachers, even though school boards are legally obligated to provide "just cause" only to tenured teachers. 

Recommendations

1. School boards should limit the "just cause" standard to cover only tenured teachers, and provide a less rigid standard for probationary teachers who are still being evaluated for their competence.

School boards should carefully review their collective bargaining agreements for any language that makes a "just cause" standard applicable to probationary teachers, and instead specify an annual employment arrangement for them with the following language: 

Probationary employees are employed on an annual contract basis, renewable on an "at will" basis during their probationary period of employment, and may be disciplined during that period for any reason as determined appropriate by the school board.

2. School districts should update their collective bargaining agreements to reflect changes in the law regarding the length of teachers’ "probationary" status.

In 1994, the Michigan Teacher Tenure Act was amended to establish a four-year probationary period for teachers before they could gain tenure. There are still more than 200 collective bargaining agreements that contain the pre-1994 provisions of a two-year probationary period with a possible extension for a third year. 

School boards should modify their agreements to reflect present law, and take advantage of the longer probationary period to thoroughly evaluate teachers before allowing them tenure and a "just cause" standard of discipline and discharge.

3. School boards and administrators should carefully follow the established seven-point test when building a case for the "just cause" discipline or discharge of a tenured teacher.

Arbitrators are unlikely to uphold the discipline or discharge of an employee if the school district does not properly follow and document the steps showing "just cause." School boards and administrators who adhere to the requirements for "just cause" will avoid costly and unfavorable arbitration rulings. 
  
 

Improvement #5: Strengthen Teacher Evaluation Clauses

School boards and administrators are responsible for the education of children. This obligation is inconsistent with protecting the employment of poorly performing or behaving teachers. Accordingly, school districts must take steps to ensure that the process of teacher evaluation serves the primary consideration of delivering quality education to students, while avoiding any potential harm that may result from unqualified or otherwise unfit personnel remaining in the classroom.

The teacher evaluation plays an important part in a school’s ability to effectively educate its students. School officials must be able to evaluate the competency and performance of each teacher in order to judge how well he uses his skills to help students learn and achieve. 

Each evaluation is part of a continuum that builds over time. Thus, a proper teacher evaluation must go beyond the mere "performance" of an instructor standing in a classroom lecturing; it must address a teacher’s overall ability to establish and maintain a positive learning environment for students. School boards and administrators must keep this focus in mind as they bargain contract language that affects these evaluations.

Analysis

NEA President Bob Chase recently acknowledged that, "the heart of education is this: the daily engagement between teacher and pupil, and the commitment that both parties bring to the task." Yet unions such as the MEA often demand uniformity in the teacher evaluation process—a cookie-cutter approach that ignores the differences in goals, objectives, standards, and style between elementary and secondary teaching. 

Collective bargaining agreements in Michigan, with few exceptions, place more restrictions on school administrators’ rights to evaluate their teachers than do any statutory requirements. For example, the way a school conducts an evaluation today may affect how that evaluation can be used in future decision making. If an evaluator fails to immediately identify and address a teacher’s known problems or deficiencies during the course of an evaluation, then that evaluator may be prevented by contract from bringing up these problems or deficiencies during future evaluations or discipline proceedings.

Problems arise when teacher evaluators, for whatever reason, choose not to honestly confront poorly performing teachers during the evaluation process. For example, a school official may sometimes be tempted to rate an unsatisfactory teacher as satisfactory because the official believes that poor teacher evaluations reflect negatively on his own job performance. He may also fear that giving an unsatisfactory review to a teacher with problems may only compound those problems.

Awarding a satisfactory rating for unsatisfactory teacher conduct or performance may, however, result in worse problems down the road. Administrators who later want to address that particular conduct may be prevented from doing so by the pattern of past evaluations or the terms of the bargaining agreement.

Some collective bargaining agreements allow for grievances regarding the content of teacher evaluations. Such provisions expose districts and administrators to costly and time-consuming arbitration proceedings. In Manhattan, New York, to discipline one incompetent teacher, a principal

. . . has spent close to 100 hours out of the [school] building over the past two years in grievance sessions at the district office, at the Board of Education, and at arbitration sessions. Although every one of [the principal’s] negative evaluations has eventually been upheld, he still must go through the process for another year before this one employee might have to face formal disciplinary charges—a process that can take several more years.

Recommendations

1. Michigan school board members and administrators should use the five points established under the Michigan Teacher Tenure Act when evaluating a teacher’s competency.

Unsatisfactory performance in any one of these five points is sufficient to determine that a particular teacher is not competent: 

1. knowledge of the subject;

2. ability to impart the subject;

3. manner and efficiency of discipline over students;

4. rapport with parents, students, and other faculty; and

5. physical and mental ability to withstand the strain of teaching. 
  
 

The course of action pursued by the school district with regard to a poorly performing teacher must be based on the extent or severity of the poor performance.

2. School boards should remove from their collective bargaining agreements any language that provides for grievances over the content of a teacher evaluation.

The content of teacher evaluations should be left to the sole discretion of school administrators, not to arbitrators in lengthy and expensive grievance proceedings. By making the content of evaluations a grievance matter, school boards wind up placing the judgment of arbitrators, who do not work with or see the teachers who are being evaluated, above the judgment of the school administrators, whose responsibility it is to observe and evaluate the teachers’ abilities.

3. School board members and administrators should take advantage of professional seminars to learn more about the statutes governing teacher evaluations, which evaluation procedures are most effective, and how to bargain appropriate language to make the most of this vital process. 

Improvement #6: Replace Seniority-Based Salary Schedules with Performance-Based Pay Scales

Most public school teachers in Michigan are paid according to a seniority-based salary schedule, which awards compensation according to a teacher’s years of experience and level of education. This is in contrast to most other areas of commerce and industry, where employees working under a "merit-based" schedule receive compensation that is commensurate with their job performance and productivity. 

Analysis

Under a seniority-based, or "single salary schedule," system, individual teachers have a reduced incentive to be innovative or excel in the classroom since their level of compensation is not tied to their performance. Despite this, most collective bargaining agreements in Michigan establish teacher salary schedules based solely on a teacher’s level of education and years of experience.

These salary schedules are organized into a "grid" which provides for automatic pay increases based upon the number of years a teacher has spent in the district, and the kind of college degrees or number of additional academic credit hours he has accumulated, or both. These increases are commonly referred to as "step" increases.

Typically, the foundation of the grid is the "base" salary, which is equivalent to the salary given to a first year teacher with a bachelor’s degree. The remainder of the grid is based upon a percentage of this base salary. For example, a second year teacher with a bachelor’s degree might receive a salary 1.04 times the base; and a first year teacher with a master’s degree might receive 1.10 times the base salary. 

As a consequence of this grid, school districts incur additional salary expenses every year even if there is no change in the base salary. The amount of each salary increase varies depending on the distribution of the district’s work force. Districts with more teachers at the lower salary steps, for example, will incur greater expenses than those with more at the top step. These increases may be as high as three percent.

If the base salary is also increased, the impact of the step increases is compounded. All associated costs, such as retirement contributions and Medicare and Social Security taxes, are likewise increased.

Many contracts also provide raises for teachers who have "maxed out" the grid at the top step. These raises are referred to as "longevity" steps—cumulative salary bonuses for teachers with many years of experience within a district—and do not appear on the salary grid. Nonetheless, they increase a school district’s overall salary and salary-associated expenses.

In most school districts, entry level teachers with only a bachelor’s degree and no prior teaching experience receive the base negotiated salary; few districts reserve the unrestricted right to establish the starting salary for a teacher on any step of the pay scale.

Similarly, all current collective bargaining agreements in Michigan require teachers with master’s degrees to be hired according to their step on the grid—even when a teacher is willing to work for a lower salary. At the same time, the majority of agreements cap the number of years of out-of-district experience for which a teacher may receive compensation.

Collective bargaining language regarding experience often limits a teacher’s salary increases to experience gained within his current district rather than including the total of his experience. The practical consequence of this salary system has been that experienced and highly educated teachers who want to switch districts often find that they cannot do so. Districts that may wish to hire such teachers are unwilling or unable to start them at a salary level commensurate with their credentials.

School districts using a single salary schedule also experience hiring limitations, often finding it difficult to attract good teachers in technical subjects. Many with advanced degrees in science, engineering, or computers prefer to work for employers that offer merit-based pay rather than for schools offering the inflexible pay scales of union contracts.

Teachers working under a seniority-based salary system face a number of disincentives and drawbacks. Such a system does not provide adequate incentives for them to continuously improve their job performance, teaching methods, or professional development in their subject areas. 

Without the incentives and motivation that come from the promise of additional compensation, teachers must instead be internally motivated to continue to improve the educational product they offer to students. Some teachers, to be sure, are strongly motivated by their passion for teaching—and it is precisely those teachers who deserve recognition through a merit-based pay system for their outstanding classroom contributions.

Another example of the seniority system’s inherent unfairness is that only teachers with a combination of both education and experience are able to reach the top of the salary schedule. In other words, a teacher who has worked in his district for over thirty years but lacks a doctorate, specialist, or master’s degree (plus a set number of academic course hours) cannot advance to the top of the salary scale, no matter how effective he is as an educator.

Seniority-based salary schedules also result in "wage compression." Wage compression occurs when the incremental rates of pay between the highest and lowest salaries become reduced through the application of wage increases to the lowest pay level. When each salary level is not equally increased, the difference between salaries shrinks, or becomes "compressed." There are practical financial reasons for applying wage increases to the lowest level salary, but the teachers at the top of the pay scale may resent this.

Despite this lack of flexibility and fairness in teacher compensation, many union officials maintain that seniority-based salary schedules that punish the very teachers they represent are the "fairest" system. One current contract provision even bluntly states, "Under no condition shall a teacher be compensated above his/her appropriate step on the salary schedule." Such contract language can serve only to dampen individual teacher motivation, initiative, and performance.

Unions such as the NEA remain opposed to changes in the seniority-based salary system. The NEA "believes that performance pay schedules, such as merit pay, are inappropriate." The NEA’s 1997-98 Resolutions further hold that salary schedule systems must be established based on "preparation, professional growth and length of service and exclude any form of merit pay." 

School districts attempting to establish performance-based pay schedules for their teachers have invariably met with union resistance. However, some districts such as Saginaw have been successful in bargaining a portion of their teachers’ salaries based on the requirement that teachers meet certain district-wide goals adopted by the school board.

Recommendation

School boards should remove seniority-based salary schedules from their collective bargaining agreements and institute performance-based pay scales that reward outstanding teachers, encourage innovation, and attract the best people for the important job of educating tomorrow’s leaders.

A performance-based salary schedule can be based on either teacher performance or student performance. The Michigan legislature in 1995 strengthened school districts’ rights to create performance-based salary systems when it passed PA 289 into law. PA 289 states in part that, "A school district or intermediate school district may implement and maintain a method of compensation for its employees that is based on job performance and job accomplishments."

In 1993, AFT union president Albert Shanker himself proposed performance-based pay, acknowledging that such a system could be developed without being anti-union and its flaws "would be very small compared to what we have now or compared to what you would have without such a system." 

Improvement #7: Examine and Competitively Bid Health Care Benefit Options

Teacher salaries and benefits are by far the largest expenditure in every school district. In Michigan, such expenditures average around 82 percent of the entire budget. Benefits packages by themselves take up roughly 25 to 30 percent of the compensation budget, and health insurance is typically the second-largest item in the annual budgets of school districts, just behind salaries and wages. With health care costs rising and school district revenue projections remaining flat, school districts now more than ever must be value-based purchasers of employee benefits.

Analysis

Former teacher and union leader Myron Lieberman explains that unions encourage increases in benefits over salary increases so that "the salary schedule doesn’t look as high, which helps unions maintain public support. The other benefit is that they’re able to tell teachers what a terrific deal they got." Yet union leaders often argue that teachers aren’t getting paid enough—giving voters the sense that schools are underfunded. 

In Michigan prior to 1994, the primary insurance plan options for school districts were as follows:

• the MEA-controlled Michigan Education Special Services Association (MESSA), 

• the School Employers Trust (SET), 

• Blue Cross and Blue Shield of Michigan (BCBSM), 

• health maintenance organizations (HMOs), or 

• third party administrators (TPAs), or 

• modified traditional plans developed in conjunction with TPA services. 

Two changes since 1994 have had an impact on the packaging and delivery of health care benefits to school districts in Michigan. One is in the way BCBSM is marketing its products; the other is the increased popularity of managed care products. Both changes are convincing many school boards, administrators, and union members to consider different options for their health care plans, rather than "rubber stamping" MESSA as their insurance carrier.

In the past, most Michigan school administrators automatically turned to the high-priced, union-run MESSA because they were unwilling to battle with the union for changes in employee health care plans. Since revenues could always be increased through regular millage campaigns, many assumed cost considerations were relatively unimportant. MESSA’s stronghold in the school market is largely due to this miscalculation and also to its former ability to leverage strikes to exact yearly average benefit increases in excess of nine percent for the last ten years. 

A June 1997 Michigan Insurance Bureau audit revealed that MESSA had a surplus of $105 million in excess premiums. MESSA’s effective premium rate increase, for July 1, 1998 to June 30, 1999 as approved by the Michigan Insurance Bureau, is 10.97 percent. In order to comply with the terms of its 1996 settlement agreement with the state of Michigan, MESSA will apply $29 million of its surplus from excess premiums toward reducing the final rates charged to its members. 

Some school boards have objected to using MESSA, a wholly owned subsidiary of the MEA, because a portion of the school districts’ health care premiums is used to bolster the political and organizational strength of the MEA.

Funding changes necessitated by Proposal A of 1994 are also compelling many school boards to seek lower cost alternatives to MESSA which maintain current employee benefit levels. Now that changes in the law wrought by PA 112 have eliminated union strike pressure, over 300 districts still using MESSA have the opportunity to explore ways to better manage their resources within existing funding levels.

Unfortunately, even after the PA 112 reforms, many school districts are prevented from changing their health care plans because they failed to negotiate the proper language into their collective bargaining agreements. The areas of an agreement that address funding, specific benefits, and the relationship between the agreement and the master insurance contracts are critical for control of health care plans. Yet in many cases district officials have not evaluated this language for years. 

Recommendations

1. School districts should take advantage of changes in the law to regain control of, and restore flexibility to, health care decision making by (a) removing any contract language that identifies a specific health care insurance administrator, and (b) naming themselves as policyholders for their insurance plans.

(a) Budget pressures and responsible management require school districts to maintain maximum flexibility to choose the most cost-effective ways to provide their employees with bargained benefits. Districts that have found themselves contractually "locked in" to using the expensive union-run plans now regret surrendering the freedom to choose other administrators.

Accordingly, district negotiators should bargain specific benefits without naming any specific administrator. Depending on the negotiated language, a change in insurance administrator or the method of funding should not affect the collective bargaining agreement as long as the benefit levels are bargained in good faith.

(b) PA 112 has made the right to name the holder of a school district’s health care insurance policy a prohibited subject of bargaining. School districts should take this opportunity to name themselves as policyholders to the insurance plans they choose. Districts gain a number of benefits from such a move, including the following:

• The ability to acquire the claims history data associated with their chosen health care benefit plan. A claims history is a listing of the type and amount of the medical claims made by employees covered by a health care plan. Having the claims history allows a district to evaluate its own data and is essential for acquiring competitive bids from different insurance providers. This information does not violate employees’ privacy rights and is necessary for making sound business decisions.

• The opportunity to manage components of the plan such as prescription drugs, mental health benefits, and provider network development.

• The opportunity to purchase supplemental programs independently (e.g., life, disability, dental, and vision insurance). This allows school districts to obtain the best value by packaging benefits to fit the needs of the district and its employees. 
  
 

Districts using MESSA as their insurance administrator have experienced reduced control over their health care plans because MESSA names itself as the policyholder for the plans it takes out on behalf of districts, and refuses to share certain vital information about those plans with school boards and administrators.

2. School boards should competitively bid health care plans in order to minimize their expenditures while maximizing the quality of employee coverage.

Competitive bidding among a variety of health care providers and administrators allows school districts to identify the most cost-effective supplier of benefits. 

Districts that have sought bids and ultimately switched from MESSA to other insurance carriers have saved from 6 to 28 percent on the cost of providing identical coverage to their employees. That has translated into saving as much as $500,000 per year.

3. School district negotiators should come to the bargaining table prepared with benefits proposals that are based upon structured total compensation models. 

The school board is responsible for the thorough analysis of all cost and budget controls for each line item, including payroll, benefit, and pension funding. Using total compensation models provides a thorough analysis by calculating the cost of every portion of employee wages and benefits, including paid leave, fringe benefits, employer-related costs such as Social Security and workers’ compensation taxes, and other expenses. 

School districts must take care to bargain for benefits language that allows flexibility in health care funding, including the option of self-funding either all or part of their health care plans. Negotiators should be well-versed in all aspects of current and proposed vendor contracts. The well-prepared district negotiating team comes to the bargaining table with knowledge gained from evaluating a variety of health care plans.

4. School boards must work with employee unions to develop trust and a recognition of the need for change. 

Teachers and other district employees may be suspicious of changes in their health care benefits, fearing the reduction or elimination of benefits they currently enjoy. Less expensive alternatives to union-run plans that provide the same level of coverage do exist. Boards and employees should work together to implement the best alternative plan that fits everyone’s needs. Teachers should always be informed about any proposed changes in their level of health care benefits. 
  
 

Improvement #8: Eliminate Class Size Limitation Clauses

The number of students per teacher in a classroom has been an issue in collective bargaining since the first contract negotiations began in Michigan more than thirty years ago. Unions maintain that smaller classes allow teachers to spend more time with each student, thus boosting educational achievement. Consequently, many of Michigan’s school districts have negotiated language that affects class size into their bargaining agreements. 

Analysis

Over a third of collective bargaining agreements in Michigan currently establish a maximum number of students for each class and provide for mandatory teacher salary bonuses any time this maximum is exceeded. Some contracts mandate that teachers be paid an additional $1 to $4 per day for each student over the maximum. Other contracts specify a $75 bonus per additional student per semester. 

Negotiating smaller class sizes has proven to be a costly arrangement for school districts, especially those with growing student populations. Smaller classes mean that more teachers must be hired and put onto the district’s payroll, which causes education costs to increase. An analysis of union proposals from 1966-1968, the first two years after collective bargaining was in effect in Michigan, revealed that the proposed class size provisions would have added $3 million to $6 million to affected schools’ budgets. School officials admitted that the proposals "would have been extremely costly to grant because of the necessity of hiring many new teachers."

Charles Rehmus and Evan Wilner concluded in The Economic Results of Teacher Bargaining: Michigan’s First Two Years:

Most teacher bargaining requests have included proposed limitations on class size. While school administrators and most school board members are sympathetic with the teacher preference for smaller classes, class size limitations have severe cost impact. A simple example makes the point. Reduction of average class size from 30 to a negotiated maximum of 25 students in a class would result in a 16-2/3-percent increase in teacher salary costs.

Establishing class size requirements within a collective bargaining agreement restricts the school administration’s decision making about the most effective use of staff, space, and scarce financial resources. 

There is also no evidence that supports the main justification for these proposals; namely, that smaller classes produce improvements in student performance. Education reformer Chester Finn explains the cycle: 

Parents take for granted that smaller classes mean better education. Teachers cheer any move to shrink their classroom populations. Unions get more members. Administrators get more staff.… [yet] there’s no credible evidence that across-the-board reductions in class size boost pupil achievement. 

Finn goes on to cite University of Rochester economist Eric Hanushek’s recent study of the relationship between class size and student performance. Hanushek reportedly found that between 1950 and 1994 the student-to-teacher ratio dropped by 35 percent, from an average of 30 students per class to the current average of 22. At the same time, spending has increased to its highest level and student performance on standardized tests has not improved. Hanushek concluded that "there is little systematic gain from general reduction in class size."

Recommendation

School districts should remove class size limits from collective bargaining agreements. 

Proposals to reduce the student-to-teacher ratio are costly to districts and needlessly restrictive on administrators who must decide on the most effective uses for available resources, including teachers. The school board and administrators should be left free to decide how best to allocate scarce resources. 
  
 

2. Court Decisions

Many current contracts between Michigan’s school districts and teacher unions fail to protect the constitutional rights of teachers as upheld in a number of decisions by various courts, including the U. S. Supreme Court. School boards that fail to consider the legal requirements placed upon them by these court decisions can leave themselves exposed to employee lawsuits and other liabilities, draining more funds away from their mission of educating children.

For example, over two dozen current collective bargaining agreements do not notify teachers of their basic right to refuse union membership and to instead pay only an "agency service fee" to cover the costs of collective bargaining.

Staying informed about new laws and legal requirements can be a tedious and time-consuming chore. Even so, school boards have an obligation to themselves, the taxpayers they represent, and their employees to negotiate contracts that conform to the law and respect the constitutional rights of everyone involved.

Following are seven court decisions that school boards must consider when negotiating collective bargaining agreements with unions. Most of these decisions involve suits brought by objecting Michigan workers, but those that do not are still applicable to public school collective bargaining in this state. The message is clear: School districts must uphold the rights of their employees in any contractual agreement. 

Abood v. Detroit Board of Education

The 1977 U. S. Supreme Court decision in Abood v. Detroit Board of Educationfound that forcing public school employees to pay union dues affects their First Amendment rights. The Court held that a government employer and union may reach an agreement requiring employees to pay an agency service fee to cover the costs of collective bargaining, contract administration, and grievance adjustment. However, the decision clarified that objecting employees have a constitutional right to withhold payment of any union fees that support political and ideological causes. 

In other words, those objecting employees can be compelled to pay only those expenses directly related to collective bargaining. Under Abood, all public employees have a constitutional right to "prevent the Union’s spending a part of their required service fees to contribute to political candidates and to express political views unrelated to its duties as exclusive bargaining representative." 

School boards that negotiate contracts requiring employees to pay union representation fees are acting within their own discretion to force employees to join unions and are therefore legally liable for any failure to protect the rights of objecting employees. Under Abood, employees must be given the clear choice of either joining the union and paying full dues or else paying only a service fee to cover the direct costs of collective bargaining. Contracts that fail to give employees this choice violate the employees’ constitutional rights.  

Chicago Teachers Local 1 v. Hudson

In 1986, the U. S. Supreme Court ruled in Chicago Teachers Local 1 v. Hudsonthat a union must explain to nonunion workers the purposes for any fees it collects from them. Basing its decision on the earlier Abood case, the Court further found that unions must hold disputed fee money in escrow while resolving worker disputes before an impartial decision maker.

The Court considered it essential for unions to provide adequate information about the portion of financial cost charged for collective bargaining to employees who object to fee payments. School boards must therefore establish contractual agreements which minimize any possibility the objecting employee is subsidizing union political or ideological activities.

Currently, over 400 collective bargaining agreements in Michigan contain language that either explicitly informs teachers of the Hudson decision or alludes to the fact that employees who object to supporting the union’s ideological and political agenda have a forum to challenge their fee assessment. Yet the school board in each of these contracts has agreed with the union that the forum should be established and controlled by the union itself—the very organization with which the objecting employee disagrees. 

School districts that have agreed to these contractual terms have limited their employees’ Hudson rights to have their objections heard by a mutually agreed-upon and impartial decision maker. School boards should not accept any union-established procedure as sufficient protection of employee rights. Those collective bargaining agreements that do conflict with Hudson and other decisions which govern Michigan employment should be renegotiated to ensure that the constitutional rights of employees are protected and the school district is not exposed to liability.  
  
 

Lehnert v. Ferris Faculty Association

The U. S. Supreme Court’s 1991 decision in Lehnert v. Ferris Faculty Associationdiscovered that 90 percent of the NEA, MEA, and local union fees being charged to objecting faculty members was spent on union activities unrelated to collective bargaining. The Court again upheld the principle that objecting fee payers cannot be compelled to pay for a union’s lobbying, organizing, image building, public relations, or any other activities not directly related to collective bargaining representation. The Court also required the union to provide an audited accounting to objecting fee payers. 

Buzenius v. NLRB

Recently, the Sixth Circuit Court of Appeals determined in Buzenius v. NLRB that a union security clause requiring employees to become and remain "members of the Union in good standing" is inconsistent with an employee’s right to refuse to join a union and pay full dues. 

In this case, the collective bargaining agreement between the employer, Weyerhauser, and the union, United Paperworkers’ International, required each employee to remain a "member in good standing" of the union as a condition of employment. In effect, Weyerhauser became the union enforcer by agreeing to fire anyone who failed to pay the union’s required fees. 

The Court’s ruling that such contractual language misrepresented an employee’s legal rights reinforced a long-standing national labor relations policy that union membership is completely optional. 

In March 1998, the U. S. Supreme Court declined to review the Buzeniusdecision. It did, however, agree to hear another case involving the same issue. Marquez v. Screen Actors Guild is a case worth watching because a substantial number of current bargaining agreements contain some of the same language that the Sixth Circuit Court of Appeals voided in Buzenius.  

Air Line Pilots Association v. Miller

The U. S. Supreme Court ruled in the 1998 case Air Line Pilots Association v.Miller that agency fee payers with disputes over their assessed service fees need not first exhaust a union-controlled arbitration procedure before taking their disputes to an administrative or judicial forum. The Court held that the union requirement that nonunion airline pilots exhaust union arbitration did not meet the impartial decision maker requirement of Hudson.

Collective bargaining agreements that require union objectors to exhaust an internal union-controlled procedure fail to protect the constitutional rights of employees to the fullest possible extent and violate the essence of the Millerdecision. 
 

Bromley v. MEA/NEA, et al.

Bromley v. MEA/NEA, et al., pending before the U. S. District Court for Michigan’s Eastern District, is a suit brought by a Central Michigan University professor and other nonunion instructors against the MEA, asserting their right to meaningful disclosure of the union’s accounting figures. They contend that audited reports do not accurately calculate whether the expenses charged to them by the union are properly chargeable. After more than six years of litigation, the Court recently certified these objecting union fee payers as a class for the purposes of bringing a class action suit. 

In accordance with the dictates of Miller, Mackinac Center for Public Policy attorneys expect the Court to hold that union financial records are subject to all the discovery provisions permitted under federal law. Few, if any, of Michigan’s public school employers have informed their employees of their right to join this class action, and participate in discovering the inappropriate ways in which their union fees are often used.

Weaver v. University of Cincinnati

Perhaps the most important court case of which school boards should be aware is Weaver v. University of CincinnatiWeaver addresses something common in public school collective bargaining agreements: the indemnification clause. School boards rely on these clauses to protect them from any legal or financial consequences arising from their enforcement of union security procedures. 

In Weaver, the Sixth Circuit Court of Appeals ruled that public employers have an independent duty to inform their employees of their constitutionally protected rights affirmed in the Hudson decision. Indemnity clauses that specify a union will hold a school board harmless in any legal and financial actions resulting from dues or service fee check-off deductions are no protection to school boards. Any public school employer who participates in establishing procedures which fail to adequately protect employee rights can be held financially liable to aggrieved employees under Weaver.

Weaver has serious implications for public school employers. Employees who object to paying union service fees are more frequently contesting the amounts they are being charged for non-bargaining activities. Under Weaver, the Court held the public employer accountable for ensuring that all Hudson requirements are followed: "A clause that relieves the employer of all consequences for its failure to assume and conscientiously carry out its duties, including even the cost of defending legal actions, is against public policy." 

3. Conclusion

Collective bargaining as it is currently practiced must change to meet the increasing public demand for greater student achievement, lower costs, and more accountability in education. School board members and teacher union officials must redefine their relationship to again focus on their primary responsibility of delivering a quality education to every child entrusted to the public schools. 

Where school board members have been well informed and properly prepared to address union proposals, collective bargaining has been a successful vehicle for improving employee benefits while maintaining the educational welfare of students. Unfortunately, too many districts are operating under bargaining agreements that include language detrimental to both of these goals. Student performance and employee protection both suffer as a result.

School boards must therefore thoroughly research and understand the implications of court rulings, constitutional rights, and public employer legal responsibilities that affect collective bargaining. Armed with this information, district negotiators should then thoroughly review union contract language with an eye toward renegotiating or eliminating altogether any clauses that 

• restrict the board’s management rights;

• confer unnecessary and exclusive privileges to unions;

• misdirect scarce resources away from educational goals;

• surrender education policy decision-making abilities to unions;

• establish unreasonably restrictive teacher discipline, evaluation, and discharge procedures;

• agree to expensive employee benefits that could be provided at lower cost;

• mandate unfair, morale-sapping salary schedules; or

• abandon the district’s obligations to protect its employees’ constitutional rights. 
 

Every school district now has the ability through careful collective bargaining to effect reforms that will help meet the demands of parents, taxpayers, students, and teachers themselves. School board members must seize the opportunity to transform the bargaining process from an adversarial one into one focused on cooperatively improving the educational product, increasing value, and protecting the rights of all concerned. 

Endnotes

Margaret O’Connor, "The Price We Pay for Government Work," Viewpoint on Public Issues No. 95-35, December 4, 1995, Mackinac Center for Public Policy.

2 William G. Keane, Win Win or Else: Collective Bargaining in An Age of Public Discontent (Thousand Oaks, CA: Corwin Press, Inc., 1996), p. 4.

4 James D. Koerner, Who Controls American Education? (Boston: Beacon Press, 1968), pp. 36-37.

5 1947 PA 336, MCL 423.201, et. seq.; MSA 17.455(1), et seq.

6 OAG, 1947-48, No. 29, p. 170; OAG, 1947-48, No. 496, p. 380; OAG, 1951-52, No. 1368, p. 205.

7 1947 PA 336, MCL 423.201, 211 as amended provides: "Representatives designated or selected for purposes of collective bargaining by the majority of the public employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the public employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment or other conditions of employment, and shall be so recognized by the public employer: Provided, That any individual employee at any time may present grievances to his employer and have the grievances adjusted, without intervention of the bargaining representative, if the adjustment is not inconsistent with the terms of a collective bargaining contract or agreement then in effect, provided that the bargaining representative has been given opportunity to be present at such adjustment."

8 MCL 423.204. Repealed by 1965 PA 379, § 2.

9 Charles M. Rehmus and Evan Wilner, The Economic Results of Teacher Bargaining: Michigan’s First Two Years (Institute of Labor and Industrial Relations, University of Michigan), No. 6 of The Research Papers, 1968, p. 2.

10 Koerner, n 3 supra, p. 36.

11 Id.

12 Rehmus, n 8 supra, pp. 3-4.

13 Id.

14 Id., pp. 11-16.

15 HB 5128, House Legislative Analysis.

16 Michigan State AFL-CIO v Michigan Employment Relations Commission, Wayne Co. Circuit Court, case no. 94-420562-CL, 1995.

17 Michigan State AFL-CIO v Michigan Employment Relations CommissionMichigan Education Association v Governor, 453 Mich 362; 551 NW2d 165 (1995).

18 Mike Thompson, "Deal-Hammering Time Arrives In Saginaw," The Saginaw News, February 9, 1998, p. A1.

19 Detroit Police Officers Association v Detroit, 391 Mich 44; 214 NW2d 803 (1974).

20 Amalgamated Transit Union, Local 1564, AFL-CIO v Southeastern Michigan Transportation Authority, 437 Mich 441; 473 NW2d 249 (1991).

21 Detroit Police Officers Association, n 18 supra.

22 Kent County Education Association v Cedar Springs Public Schools, 157 Mich App 59; 403 NW2d 494 (1987).

23 North Dearborn Heights, 1966 MERC Lab Op. 434.

24 West Ottawa Education Association v West Ottawa Public Schools Board of Education, 126 Mich App. 306; 337 NW2d 533 (1983).

25 Id.

26 Taylor Federation of Teachers v Taylor School District Board of Education, 75 Mich App 476; 255 NW2d 651 (1977).

27 St. Joseph Public Schools, 1985 MERC Lab Op 454.

28 Woodhaven School District, 1982 MERC Lab Op 1540.

29 Spring Lake Public Schools, 1988 MERC Lab Op 362.

30 Garden City Public Schools, 91 MERC Lab Op 588 (1982).

31 Detroit Police Officers Association, n 18 supra, p. 55; Van Buren Public School District v. Wayne Circuit Judge, 61 Mich App 6; 232 NW2d 278 (1975).

32 Central Michigan University Faculty Association v. Central Michigan University, 404 Mich 268; 273 NW2d 21 (1978).

33 Id.

34 City of Saginaw, 1982 MERC Lab Op 727; City of Ishpeming, 1995 MERC Lab Op 687.

35 Genesee Co, 1992 MERC Lab Op 295.

36 First National Maintenance Corp. v. NLRB, 452 U.S. 666, 678; 101 S Ct 2573; 69 L Ed2d 318 (1981). 

37 Id.

38 Westwood Community Schools, 1972 MERC Lab Op 313.

39 Central Michigan University Faculty Association, n 22 supra, pp. 280-83.

40 West Ottawa Education Association, n 29 supra.

41 Bay City Education Association v Bay City Public Schools, 430 Mich 370; 422 NW2d 504 (1988) lv den 432 Mich 853.

42 Bullock Creek School District of Midland Co., 1970 MERC Lab Op 112.

43 Board of Education of the School District of the City of Detroit, 1974 MERC Lab Op 813.

44 Portland Public Schools, 1977 MERC Lab Op 1123.

45 John Pagen, "Michigan Learned These Seven Bargaining Lessons—the Hard Way," American School Board Journal, August 1975, p. 37.

46 Diane Divoke, "Teachers, Covet Your Policy Power," American School Board Journal, June 1979, pp. 30-31.

47 MCL 380.1202a; MSA 15.41202(1).

48 Wayne County Civil Service Commission, 1975 MERC Lab Op 1000.

49 Detroit Police Officers Association, n 18 supra, pp. 54-55.

50 Male v. Grand Rapids Education Association, 98 Mich App 742; 295 NW2d 918 (1980).

51 1994 PA 112, § 215 (3) and (4), MCL 423.215 (3) and (4).

52 Robert C. O’Reilly, "Things a Board Ought Never Bargain," presented at the Annual Meeting of the National School Boards Association, 1983, p. 2: "The discussion of an expanded bargaining concept for education has been offered only to demonstrate that school boards are so bounded by a short range view, and school administrators so unaware of some larger perspectives of labor relations, that boards are operationally wedded to a system that may not produce the best service in that school community for the money spent."

53 Whittemore-Prescott Public School Master Contract, 1994-1997, p. 1, provides, "As American culture becomes more urban and school systems grow in size, it is necessary that educational groups rather than individuals express conditions of employment."

54 Ronald R. Booth, "Collective Bargaining and the School Board Member: A Practical Perspective for the 1990s," Illinois Association of School Boards, 1993, pp. 11-12.

55 Id.

56 Reported by Myron Lieberman, unpublished manuscript, Education Policy Institute, September 26, 1996.

57 Thompson, n 17 supra.

58 Albert Shanker, "Al Shanker Speaks on Unions and Collective Bargaining," Education Week, May 14, 1997, pp. 35-36.

59 Damon Darlin, "To Whom Do Our Schools Belong?," Forbes, September 23, 1996, p. 66.

60 Shanker, n 57 supra, p. 36.

61 Kathleen Harward, Market-Based Education: A New Model for Schools(Fairfax, VA: Center for Market Processes, 1995), pp. 23-29.

62 1976 PA 451, § 1102, MCL 380.1102; MSA 15.41102.

63 Booth, n 53 supra, p. 15.

64 Quoted in Sol Stern, "How Teachers’ Unions Handcuff Schools," City Journal, Manhattan Institute, Spring 1997, p. 35.

65 Shanker, n 57 supra, pp. 35.

66 A nonscientific survey of various sized school districts across the state was conducted by the author, showing that salaries and benefits of all employees consumed an average of 82% of total school budgets.

67 O’Reilly, n 51 supra, p. 2.

68 Keane, n 1 supra, p. 25.

69 Telephone interview with the president of the Frankenmuth Teachers’ Professional Organization, February 25, 1998.

70 Thompson, n 17 supra.

71 MCL 423.215 (2).

72 City of Saginaw, 1990 MERC Lab Op 755.

73 Morley Stanwood Community Schools, Master Contract, 1997-2000, p. 2.

74 City of Westland, 1987 MERC Lab Op 793.

75 Comstock Park Public Schools, 1987 MERC Lab Op 267.

76 This sample clause is a composite of good management rights clauses found in several existing contracts, including the Fowler Public School Master Agreement, 1997-2000; Baldwin Community Schools Master Agreement, 1997-2000; and Ida Public Schools Master Agreement, 1996-1999.

77 MCL 423.211.

78 "Forced Unionism is Shutting Down American Education," National Right to Work Committee.

79 MCL 423.210 (1) provides that, "nothing in this act or in any law of this state shall preclude a public employer from making an agreement with an exclusive bargaining representative ... to require as a condition of employment that all employees in the bargaining unit pay ... a service fee equivalent to the amount of dues uniformly required of members ...." Subsection 2 further provides that, "if such requirement is negotiated ... all employees of the bargaining unit shall share fairly in the financial support" of paying the service fee. (Emphases added.)

80 Stern, n 63 supra, p. 40.

81 Caroline M. Hoxby, "How Teachers’ Unions Affect Education Production," The Quarterly Journal of Economics, August 1996, p. 671.

82 Id., pp. 701-12.

83 See, e.g., Pennfield Public Schools Master Agreement, August 20, 1996, art. II, p. 1.

84 Abood v. Detroit Board of Education, 431 U.S. 209, 234; 97 S Ct 1782, 1799; 52 L Ed2d 261, 283-84 (1977).

85 Chicago Teachers Union, Local No. 1 v Hudson, 475 U.S. 292, 309-310; 106 S Ct 1066, 1077-78; 89 L Ed2d 232, 238-39 (1986).

86 U.S. Sup. Ct., No. 97-428, May 1998.

87 See, e.g., New Buffalo Public Schools Agreement, 1997-1999, p. 7.

88 See, e.g., North Muskegon Public Schools Master Agreement, August 16, 1994, p. 67.

89 Ann Arbor Board of Education v. Abrahams, 202 Mich App 121; 507 NW2d 802 (1993). See also Internet URLhttp://www.mackinac.org/mea/xi.htm.

90 Grief Brothers Cooperage Corp., 42 LA 555 (1964).

91 Bob Chase, "Running on Empty: Why Our New Unions Must Put Teacher Quality First," Education Week, January 21, 1998, p. 14.

92 Stern, n 63 supra, p. 41.

93 MCL 38.101, et. seq.; MSA 15.2001 et seq.

94 See, e.g., Deckerville EA Contract, 1997-2000, p. 28.

95 1997-98 NEA Resolutions F-9.

96 1997-98 NEA Resolutions F-8.

97 Saginaw Public School Master Agreement, 1995-1998, Appendix A, p. 70.

98 1995 PA 289, § 1, MCL 380.1250.

99 Shanker, n 57 supra, p. 37.

100 See n 65.

101 DRM Stakor & Associates, Inc., school district strategic planning documents, 1990-1997.

102 Frank Webster, "Teachers Deserve Good Benefits; School Deserve to Know What They Cost," Viewpoint on Public Issues, No. 98-20, July 6, 1998, Mackinac Center for Public Policy.

103 Matthew Robinson, "Across the Table from Unions," Investor’s Business Daily, March 19, 1998, p. 1A.

104 Andrew P. Bockelman and Joseph P. Overton, Michigan Education Special Services Association: The MEA’s Money Machine (Mackinac Center for Public Policy, 1993), available on Internet at http://www.mackinac.org/studies/9310messa/index.htm.

105 See n 101.

106 As reported in Rehmus, n 8 supra, p. 10.

107 Id., p. 19.

108 Chester E. Finn and Michael J. Petrilli, "The Elixir of Class Size," The Weekly Standard, March 9, 1998, p. 16.

109 Id.

110 Id.

111 Abood, n 83 supra.

112 Id., pp. 209, 234.

113 Hudson, n 84 supra.

114 500 U.S. 507; 111 S Ct 1950; 114 L Ed2d 572 (1991).

115 124 F 3rd 788 (CA 6 1997).

116 U.S. Sup. Ct., No. 97-1056 (pending review).

117 U.S. Sup. Ct., No. 97-428, May 1998. 

118 U.S.D.C., E. D. of Mich, File No. 92-CV-10443-BC.

119 Weaver v University of Cincinnati, 970 F2d 1523 (CA 6 1992). 

120 Id., p. 1538.