Every collective bargaining agreement should specifically detail the rights and responsibilities that remain vested in the school board. As elected officials, school board members form the only public body with the legitimate responsibility and authority to operate a school district; neither teachers nor unions have been granted authority by the electorate to undertake this responsibility.
School board members are held accountable by parents, taxpayers, and community members for the operation of their schools. Efficient operation requires that school boards never relinquish their ability to make decisions in the management of the district for which they are responsible.
The management rights contract language, or "rights of the board of education," is the contract provision that establishes school board control over the operation of the school district. The Michigan legislature has provided the framework for management rights by statute:
A public school employer has the responsibility, authority, and right to manage and direct on behalf of the public the operations and activities of the public schools under its control.70
The contracts reviewed by this study show that many school boards do not fully understand how their control can be relinquished by poor wording of the very terms meant to define their right to exercise control.
A school district may exercise only those management rights that are explicitly established in the collective bargaining agreement.71 Arbitrators may determine that any action a school district takes outside of the rights clearly defined in the collective bargaining agreement constitutes a unilateral change in employment conditions. They may also interpret imprecise language, such as that found in the following examples, as providing inadequate notice to the union of the specific rights reserved by the board.
Here is an example of a poorly worded but standard management rights clause found in a great number of Michigan school districts' bargaining agreements:
The Association [union] recognizes that except as specifically limited or abrogated by the terms and provisions of this Agreement and to the extent authorized by law, all rights to manage and direct the operations and activities of the School District and to supervise the teachers are solely and exclusively vested in the Board.
The broad wording of this management rights provision fails to protect the role and responsibility of the school board and allows the union to define the school board's rights in the agreement. Management rights clauses should instead be written from the perspective that the school board is responsible for school management except as specifically limited by the agreement.
A second example of overly broad language is that which mirrors only the statutory framework:
The Board, on its own behalf and on behalf of the electors of the District, hereby retains and reserves unto itself, without limitation, all powers, rights, authority, duties and responsibilities conferred upon and vested in it by the laws and the Constitution of the State of Michigan and of the United States.
Some districts have attempted to protect their employees' individual rights within the framework of a group agreement by modifying their authority with the following phrase:
The Board of Education in this contract does not seek in any way to deny or restrict any employee's rights established under the Michigan General School Laws or any other laws or regulations which apply.72
This clause could well lead an arbitrator to determine that a disputed management decision places an unwarranted restriction on the individual rights of a teacher protected by this language, even though the decision itself is properly within the purview of management.
The wording of a management rights clause can also restrict the very rights it is intending to define, as in this example:
The Association recognizes and agrees that the School District has the exclusive right to govern all aspects of operating the School District, including the right to discipline for just cause and to direct its entire work force at all times.
Here, the wording may bind the school district to the lengthy "just cause" proceedings (discussed below) for the discipline or discharge of all probationary employees as well as tenured teachers. Arbitrators may apply this interpretation even when a separate section of the contract states that termination or failure to re-employ a probationary employee is not subject to the grievance procedure. This language can still result in lengthy grievance proceedings and defeat the purpose and intent of probation for new employees.
School districts should adopt strong management rights clauses that explicitly designate the specific rights reserved to the school board, administrators, and management.
A school district's best defense against union charges of unfair labor practices is to clearly state management's rights in the collective bargaining agreement. Ambiguous wording may invite courts and administrative agencies to find that the school administration has waived its right to make unilateral decisions over a subject in dispute.73 Where the management rights provisions or other express terms of the contract explicitly state the employer's right to take a disputed action, the Michigan Employment Relations Commission has ruled that the union waives its right to bargain the matter.74
Following is an example of a strong management rights clause that provides clear notice of the rights retained by the school board. This clause should be placed at the beginning of the agreement so that the contract flows naturally from the express rights laid out in the clause.
Nothing in this Agreement is to be interpreted as constituting a waiver of the Board of Education's rights and responsibilities to create and maintain schools that reflect its public's wishes. The intent of the Agreement is to establish wages, working hours, and conditions of employment with the Association.
Therefore, the Board on its own behalf and on behalf of the electors of the District, hereby retains and reserves unto itself, without limitation, all powers, rights, authority, duties, and responsibilities conferred upon and vested in it by the law and the Constitutions of the State of Michigan and the United States including, but without limiting the generality of the foregoing, the right
To the executive management and administrative control of the school system and its properties and facilities;
To hire all employees and to determine their qualifications and fitness for employment and conditions for their continued employment, or their dismissal;
To establish grades and courses of instruction, including special programs, and to provide for athletic, recreational and social events for students, all as deemed necessary or advisable by the Board;
To determine overall goals and objectives as well as the policies affecting the educational program;
To select textbooks, teaching materials, and teaching aids;
To determine class schedules, class size, the hours of instruction, and the assignment of teachers with respect thereto;
To determine the services, supplies, and equipment necessary to continue its operations and to determine the methods and processes of carrying on the work;
To adopt reasonable rules and regulations;
To determine the location or relocation of its facilities, including the establishment or relocation of new schools, buildings, division or subdivisions thereof, and the relocation or closing of offices, departments, divisions or sub-divisions, buildings, or other facilities;
To determine the financial policies including all accounting procedures, and all matters pertaining to public relations;
To determine the size of the management organization, its functions, authority, amount of supervision, and table of organization; and
To direct the working forces, including the right to hire, promote, discipline, transfer, and determine the size of the workforce.
The exercise of the foregoing powers, rights, duties, and responsibilities by the Board and the adoption of policies, rules, regulations, and practices in furtherance thereof, shall be the exclusive prerogative of the Board except as limited by the specific terms of this Agreement.75