School districts are going to face a significantly different collective bargaining environment in the immediate future, with teachers unions likely to push for terms that have not been lawful considerations for over a decade. Districts should be aware that converting prohibited subjects of bargaining into permitted ones does not necessarily render them mandatory subjects of bargaining. Mandatory subjects of bargaining are limited to those affecting “wages, hours, and other terms and conditions of employment.” Districts are legally obligated to bargain in good faith over these subjects and must negotiate any changes to them. The parties must agree on these terms or face an impasse.[38]
Of the formerly prohibited subjects of bargaining covered in this review, only the subjects of privatization and dues deduction are likely not to be considered mandatory subjects of bargaining. These instead are likely permissive subjects. Districts will probably be asked to negotiate over these terms, but they need not agree to change their existing language, if there is any. Districts are in a strong position to stick with their current language, which has been the common practice of the parties for more than 10 years. Since the parties have no obligation to bargain over these terms, neither party can insist, on the threat of impasse, on the inclusion of a permissive term.
Districts should be cautious about agreeing to permissive terms, as they could lead to unexpected controversy. As an example, a common permissive term is that teachers and other school employees may wear buttons or similar accessories demonstrating union membership.[*] While these terms are facially uncontroversial, some teachers’ unions have used these badges to display support for controversial social and political issues, which, in turn, exposes school districts to criticism.[39]
Districts should always negotiate with a focus on educational outcomes and accountability. Should a district choose to alter terms in the teacher contract, it should ensure that any changes from existing language promote these goals. Districts should fight hard to preserve the authority to regularly observe and evaluate all teachers, as well as the ability to reward high-performing teachers and terminate teachers demonstrating poor performance.
It is also important to remember that the Legislature prohibited certain subjects of bargaining for a reason. At the time, a broad-based, bipartisan campaign for education reform made a compelling case for giving school administrators the authority to ensure that classrooms were staffed with high-quality teachers. Having to bargain over these terms makes that objective more difficult. With that in mind, school boards should do everything they can to retain the ability to adequately inspect and evaluate the quality of the teachers in their classrooms. Nothing a school district does matters more for improving overall student achievement.
Districts should immediately review their existing contract terms to understand their current obligations and identify any terms that might be automatically revived. They should also prepare to bargain over the language and terms previously removed from the contract. Board members should focus their bargaining sessions on winning terms that better focus on student performance. Adopting previous language verbatim will be tempting and encouraged by unions, but school board members should take the opportunity to rethink what type of policies concerning teacher pay, placement, evaluation and the like will promote academic excellence.
[*] Chippewa Valley Schools provides an example of this term, as it states that “[n]o teacher shall be prevented from wearing insignia, pins, or other [union] identification either on or off school premises.” “Master Agreement between the Chippewa Valley Schools Board of Education and the MEA-NEA Local 1” (Chippewa Valley Schools, May 3, 2023), https://perma.cc/ X8GZ-6SJS.