Transcript AM I REALLY REQUIRED TO BARGAIN OVER THAT?

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