Board Policy, Unilateral Change, and Mandatory Subjects of Bargaining
By Lea Filippi of Sedor, Wendlandt, Evans & Filippi, LLC
Part four of a five-part series on union issues in schools.
State law requires public employers to negotiate with unions on matters of wages, hours and other terms and conditions of employment. But the law also carves out from mandatory bargaining “general policies describing the functions and purposes of a public employer.” So school districts and other public employers are not required to bargain with unions regarding such matters.
The distinction between mandatory and permissive subjects of bargaining is important because a refusal to negotiate a mandatory subject of bargaining is an unfair labor practice in violation of state law and because mandatory subjects of bargaining are subject to the grievance-arbitration process.
Determining whether a particular issue is a mandatory subject of bargaining can be a difficult question. Alaska courts answer that question using a “balancing test” that considers the relative extent to which the subject relates to the economic interests of employees vs. the employer’s general policies. A matter is more susceptible to being categorized as a mandatory subject of bargaining the more it deals with the economic interests of employees. In contrast, an issue will not be a mandatory subject of bargaining if it implicates key questions of educational policy.
Subjects that have been determined to be so closely connected to the economic well-being of individual teachers and to, therefore, be mandatory subjects of bargaining include salaries, the number of hours to be work, the scope of benefits like insurance, legal indemnification, and the nature and amount of leave available to employees.
A policy decision does not become a mandatory subject of bargaining simply because it affects the amount of work a teacher must perform. For example, the Alaska Supreme Court has observed that whether teachers should have an unscheduled planning period during the academic portion of the day (as opposed to occurring before or after students are at school) fundamentally implicates the policy question of whether elementary school children should have one teacher accompany them throughout the day or whether they are old enough to be taught by different people. The scheduling of teacher preparation time is therefore not a mandatory subject of bargaining.
Similarly, decisions about class size directly affect the amount of work a teacher must perform, but are not a mandatory subject of bargaining because a determination of optimum class size is basic to school policy and management and potentially has huge impacts on overall personnel costs.
Other topics that the Alaska Supreme Court has determined are not mandatory subjects of bargaining include the district’s academic calendar and what roles may be played by paraprofessionals, aides, and specialists.
The Alaska Labor Relations Agency applies the same balancing test used by the courts whenever it is called upon to determine whether a district has committed an unfair labor practice by failing to negotiate regarding a mandatory subject of bargaining. For example, the ALRA applied that balancing test to reject a union’s claim that a school district committed an unfair labor practice by failing to negotiate an employee dress code. The ALRA noted that adopting the dress code primarily formalized a previously unwritten expectation that teachers dress in a professional manner and also emphasized that the union had not demonstrated that the dress code had any material economic impact on teachers.
When a district is considering policy changes that may have impacts on teachers and other employees, the key to determining whether or not those changes must be bargained is consideration of the extent to which the policy impacts the economic interests of employees.
Read the entire series on Union Issues in Schools
Part one: “Do I really have to allow a union representative to be present when I talk to a school district employee about a $2.00 lunch?”
By Clint Campion
By John Sedor
Part three: What Does Bargaining in Good Faith Really Mean?
By Allen Clendaniel
More from Sedor, Wendlandt, Evans & Filippi, LLC:
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The views expressed here are the writer’s and are not necessarily endorsed by the Association of Alaska School Boards. AASB welcomes diverse perspectives and civil discourse. To submit a Guest Column for consideration, see our Guest Column Guidelines and email your 400-1000 word submission HERE.