Sunday, December 8, 2013

School Collective Bargaining Basics Part I

    A new movement in Minnesota, focused on Minneapolis and St. Paul,  seeks to hold school boards accountable for the substance and procedure of collective bargaining, especially with respect to  teacher contracts.  The movement is driven by the perception that school boards have handcuffed themselves, and their management, preventing implementation of reforms necessary to improve public education.   At the center of that movement is the new organization, Put Kids First Minneapolis.     A Facebook page, Contract for Student Achievement, often contains dialog on the topic.     The emerging  concerns  focus on  the substance of collective bargaining agreements--their effect on school finance,  on working hours and learning time, on the ability to hire effective teachers, on the impact of seniority, and on the ability to replace ineffective teachers. But reformers also focus on the procedure by which bargaining agreements are conducted.   Should bargaining sessions be closed to the public during mediation?   Is financial reporting on the impact of  agreements transparent, or do public announcements  mask the full cost of agreements?  Do the  agreements  have "tails," which visit future financial consequences not fully understood?    At times the connection between the cost of these agreements and future program cuts is not fully explained, and that leads to the perception that labor agreements are contributing to the financial crisis in public education.   Finally, in certain districts, there is a concern that the  school board is  accountable to the very union with which they are bargaining,  so that the  fox is bargaining with  other foxes about the  chicken coop.

For this reason, I thought it might be helpful to write a few posts on Minnesota's legal framework for collective bargaining.   Knowledge is power:   the better citizens understand collective bargaining, the more effective they can be in monitoring its course.  It will take a few posts to cover the subject effectively.

You can find the Public Employees Labor Relations Act, by clicking on the following link. Chapter 179A. PELRA was enacted in Minnesota in 1971, and amended on a number of occasions thereafter.   The law is not neutral on the topic of whether public bodies, such as school boards, should be receptive to public labor unions.   The  chapter begins with a declaration of policy as follows:

It is the public policy of this state and the purpose of sections 179A.01 to 179A.25 to promote orderly and constructive relationships between all public employers and their employees. This policy is subject to the paramount right of the citizens of this state to keep inviolate the guarantees for their health, education, safety, and welfare.......Unresolved disputes between the public employer and its employees are injurious to the public as well as to the parties. Adequate means must be established for minimizing them and providing for their resolution. Within these limitations and considerations, the legislature has determined that overall policy is best accomplished by: 
(1) granting public employees certain rights to organize and choose freely their representatives;
(2) requiring public employers to meet and negotiate with public employees in an appropriate bargaining unit and providing that the result of bargaining be in written agreements; and
(3) establishing special rights, responsibilities, procedures, and limitations regarding public employment relationships which will provide for the protection of the rights of the public employee, the public employer, and the public at large."
PELRA, thus requires public employers to "meet and negotiate" with representatives of public unions (sometimes called the exclusive representative).  But public employers are not required to "meet and negotiate" about anything and everything that public employees want to bring to the table.  For example, school districts need not negotiate about the District's overall  budget, or the curriculum, or teaching philosophy.   All of those are of great interest to teachers and principals, and properly run school districts involve employees in dialong on these issues. But those issues are not bargaining issues, unless the school district unwisely places them at issue.

The list of the things that public employers must negotiate is largely regulated by PELRA itself.   The employee section on the right to negotiate says:  "Public employees, through their certified exclusive representative, have the right and obligation to meet and negotiate in good faith with their employer regarding grievance procedures and the terms and conditions of employment, but this obligation does not compel the exclusive representative to agree to a proposal or require the making of a concession."

The employer section tells us that PELRA is not designed to limit "inherent managerial rights:"  It says:
A public employer is not required to meet and  negotiate on matters of inherent managerial policy. Matters of inherent managerial policy include, but are not limited to, such areas of discretion or policy as the functions and programs of the employer, its overall budget, utilization of technology, the organizational structure, selection of personnel, and direction and the number of personnel.
For this reason, almost all collective bargaining agreements contain a management-rights clause which seeks expressly to make it clear that the agreement does not purport to limit management's rights, unless those rights are expressly restricted in the agreement.  Sone school districts, however, do meet and negotiate over areas of managerial policy.   When they do that, they are abdicating their responsibility to the public, unwisely, and neglecting the injunction of PELRA to respect the "paramount right of the citizens of this state to keep inviolate the guarantees for their health, education, safety, and welfare."    I'm not suggesting at all that employees shouldn't be consulted about managerial policy.  On the contrary, strong organizations listen to their employees and provide avenues for expressing concerns.   But they don't, and should not, limit their discretion to manage effectively.  The purpose of collective bargaining is to create a forum to negoatiate the terms of employment:  wages and hours, benefits, and other economic terms.

I'll try in future posts to provide some legal background and some practical information related to the ongoing discussion about the impact of collective bargaining on school reform.

See School Collective Bargaining:  House Research:
Contract for Student Achievement
Put Kids First Minnesota
Schmedemann, The Scope of Bargaining in Minnesota's Public Sector Labor Relations: A Proposal for Change, 10 Wm. Mitchell L. Rev. 213 (1984)

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