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.39
Examples of permissive bargaining subjects include the following:
Once language is contained in a collective bargaining agreement, it cannot be changed unless there is mutual agreement or the contract expires. It is much easier to keep language out of a teacher contract than to remove it later.
elimination of any programs being transferred to an intermediate school district;40
issuance and return dates of teacher contracts;41
recruiting standards;42 and
formulation of new positions.43
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 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.44
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 or else 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.45
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.46 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.
Prohibited subjects of bargaining should never be included in collective bargaining agreements; unfortunately, many contracts throughout the state nevertheless contain them.
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.