Mandatory subjects of bargaining are those subjects embodied in the statutory language of "wages, hours, and other terms and conditions of employment."19 The Michigan Supreme Court provides a list:
Such subjects as hourly rates of pay, overtime pay, shift differentials, holiday pay, pensions, profit sharing plans, rental of company houses, grievance procedures, sick leave, work-rules, seniority and promotion, compulsory retirement age, and management rights clauses are examples of mandatory subjects of bargaining. 20
Health care benefits are also mandatory subjects of bargaining.
Since public employees are not permitted to strike, the Court has applied a more expansive interpretation of what constitutes a mandatory bargaining subject,21 concluding that a subject is mandatory when it has a direct effect on the employment relationship. 22
At no time is either side required to accept the other's proposal or compromise in a way that may be harmful, in either the short or long term, to the district or teachers.
Once a specific subject has been determined to be mandatory, the parties are required to bargain it: Neither party may unilaterally change the language or resulting conduct until an impasse is reached.23 "Impasse" is defined by the courts and administrative agencies that oversee labor relations as a continuing effort to negotiate without a change in position. The Michigan Employment Relations Commission (MERC) decides on a case-by-case basis whether an impasse has been reached. MERC considers an "impasse" to be the point at which the positions of the parties have become so entrenched that no further bargaining would be productive.24
At no time is either side required to accept the other's proposal or compromise in a way that may be harmful, in either the short or long term, to the district or teachers. By declaring an impasse, however, the bargaining parties do not necessarily meet the legal standard required before a particular proposal can be unilaterally implemented. The obligation to bargain continues: An impasse only suspends bargaining on the particular subject until there is a change in circumstances or in the position of one of the parties.
Sometimes the impact of a school board's decision is a mandatory subject of bargaining, even though the decision itself can be made unilaterally by the board. 25
Other mandatory subjects of bargaining include the following:
selection of textbooks;27
retirement incentive plans;28
subcontracting out exclusive teacher bargaining unit work;29
schedule changes in preparation time and length of the school day;32 and
the criterion and format of teacher evaluation.33 (Frequency of evaluations, however, need not be negotiated.) 34
Some subjects of collective bargaining appear to be within management's unilateral control, but affect the employment relationship. The U. S. Supreme Court has developed a test to balance the interests of the parties in these instances.35 The balancing test establishes that the obligation to bargain exists when the "benefit, for labor-management relations and the collective bargaining process, outweighs the burden placed on the conduct of the business."36
Though these subjects seem all-encompassing, management decisions which go to the heart of controlling the school district are not considered mandatory subjects.37 Education policy, for example, has been determined not to be a mandatory subject of bargaining.38
Those subjects which are not considered mandatory may be either permissive or prohibited subjects of bargaining.