The Collective Bargaining Process

Collective bargaining in Michigan’s private sector is governed by the federal National Labor Relations Act, passed in the midst of the Great Depression.[6] By contrast, collective bargaining in the public sector is governed by Michigan law, which developed decades later. Prior to the 1960s, collective bargaining in public education was not commonly practiced anywhere in the nation. Indeed, the road to public-sector bargaining in public education has been described as "a rocky one."[7]

Historically, collectivist union activities in the private sector were frequently banned as wrongful conspiracies intended to thwart the business interests of employers, and, as noted above, did not become legal until 1935.[8] Accordingly, union activities in the public sector, where employment issues are far more complicated, were not generally even considered feasible. As late as 1959, AFL-CIO president George Meany said, "It is impossible to bargain collectively with the government."[9] Nevertheless, in 1962 the United Federation of Teachers obtained the legal right to bargain collectively on behalf of teachers in New York City. According to researchers Frederick Hess and Martin West:

"The pivotal moment in those struggles came in 1960, when, following a one-day walkout by the United Federation of Teachers (UFT), New York City Mayor Robert Wagner allowed teachers to vote whether to pursue formal collective bargaining. In June 1962, after another strike, the UFT negotiated a formal collective bargaining agreement — the nation’s first for teachers — offering an across-the-board pay increase of nearly $1,000 and a duty-free lunch period."[10]

Lynn Parrish: “What I’ve heard most from board members, after they’ve had a little time under their belts, is they’re just shocked at how complicated school business really is, how many mandates are on us and how little control we have over some things. My best advice to a board member would be to try to stay optimistic, to listen and to learn, and to ask questions. Try to withhold judgment until you get all the facts.”

Henry Saad on PERA: “It’s a complicated compromise, but I think it’s about as good as you are going to get.”

Shortly thereafter, President John F. Kennedy issued Executive Order 10988, approving unionization of federal public employees. The order did not compel federal employees to join a union, but it established procedures like those of the NLRA, whereby if a majority voted in favor of a union, it became the exclusive representative of all.[11]

Michigan’s Public Employment Relations Act was originally enacted in 1947, but effective unionization was not possible for public school employees until a substantial revision of PERA in 1965.[12] The federal and state approaches to collective bargaining are similar, but not identical. Michigan courts have, however, turned to federal court interpretations of the NLRA in rendering their own interpretations of PERA.[13]

PERA is administered by the Michigan Employment Relations Commission, which assists the parties in mediating and fact finding and acts as a judge in disputes. MERC’s decisions may be appealed to the Michigan Court of Appeals and, ultimately, the Michigan Supreme Court.[14]

When Michigan gave educators in public schools the legal right to organize in 1965, education unions quickly gained ground. With a well-developed private industrial union model in Michigan — the birthplace of America’s automotive industry — many of these new labor unions adopted a number of practices from the old industrial model.

The unionization of teachers and support staff unleashed a new dynamic in the public school system. No longer was it possible for locally elected officials, working individually with parents and teachers, to operate public schools freely and simply as they saw fit. By its very nature, and by the dictates of the state legislature, unionization instead required a formal process by which agreements concerning the running of the school would be reached. This process is known as collective bargaining, through which school boards and unions attempt to reach a consensus on the terms and conditions of employment.

Collective bargaining entails not only an agreement with teachers, but separate agreements for any distinguishable bargaining unit, such as custodians or principals. Pressure is added to the mix by the perceived need to create uniform benefits packages among the disparate bargaining units. The process is complicated and often conducted by professional negotiators, with overriding requirements of good faith. When matters deteriorate, as is often the case, the prospects of impasse and charges of unfair labor practices arise. The process is a crucial one, given that school districts spend the vast majority of their budgets — approximately 75 percent to 85 percent — on wages, benefits and other more indirect aspects of collective bargaining.[15]

Harvard Law School’s Program on Negotiation describes the actual collective bargaining process as comprising five core phases:

"I. Preparation and Framing. In this phase both the school board and the union examine their own situation in order to develop the issues that they believe will be most important, including assessing ‘your interests as well as the interests of the other side’;

"II. Bargaining Over How to Bargain. Here, the parties decide the groundrules that will guide the negotiations. This is where the logistics are determined, such as the rules for secrecy and the frequency of negotiating meetings;

"III. Opening and Exploring. This phase involves the initial opening statements and the possible options that exist to resolve them. In a word, this phase could be described as ‘brainstorming’;

"IV. Focusing and Agreeing. This stage comprises the time when ‘what ifs’ and ‘supposals’ are set forth and the drafting of agreements take place; and

"V. Implementation and Administration. This stage is described as consisting of ‘effective joint implementation through shared visions, strategic planning and negotiated change.’"[16]