(2) Permissive Subjects

Those subjects of bargaining that are not considered mandatory but are not otherwise prohibited are permissive. Permissive items might include such matters as class sizes.[*]

Permissive items are often the subject of a bargaining agreement, but they are not required to be. Because they are merely permissive, the parties may not use their stance on such issues to limit discussion on mandatory items. Moreover, neither party may be required to agree to a disputed permissive item.

Because school boards have the legal authority to run Michigan’s schools, there is no statutory need for them to bargain over the permissive subjects. These subjects may simply be addressed in board policies or through practices. Indeed, keeping board policies out of collective bargaining agreements is desirable, since changing an existing contract is much more difficult than modifying a board policy. However, it has been noted, "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."[81] Each district will have to reach its own conclusion, given its own unique circumstances, in deciding whether it is appropriate to agree to bargain on subjects that are merely permissive.

The number and kind of permissive subjects that find their way into collective bargaining agreements is limited only by the perceived need. Examples of permissive bargaining subjects include the following:

  • "elimination of any programs being transferred to an intermediate school district;

  • issuance and return dates of teacher contracts;

  • recruiting standards; and

  • formulation of new positions."[82]

Items that affect the mandatory subjects, such as wages and conditions of employment, can be hard to classify. In that regard, a number of subjects have been interpreted to be permissive subjects rather than mandatory. For example, 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.[83]

[*] This sentence differs from the primer's print version, which incorrectly suggested that the composition of site-based management committees is a permissive subject of bargaining. In fact, the composition of these committees is a prohibited subject of bargaining under MCL §423.215(3)(c). No other errors have been found in the original text of this primer.