It is a common and understandable practice of teachers unions to devise model strategies and recommendations for their negotiators. Accordingly, many collective bargaining agreements contain similar language.
In 1998, labor attorney La Rae Munk, then of the Mackinac Center for Public Policy, conducted an analysis of 583 collective bargaining agreements in place in Michigan schools. In the course of this analysis, she identified a number of specific improvements that could be made to collective bargaining agreements that would lead to more efficient management. These recommendations continue to be of relevance today. The discussion in this section reflects, consolidates and updates the conclusions of this pivotal work.
1. Adopt strong management rights clauses that explicitly designate the specific rights reserved to the school board, administrators and management. Ensure that this prerogative is carried through the entire agreement.
Michigan law grants broad authority to school boards to manage Michigan schools. In order to assert this full statutory authority, it is desirable, even essential, for collective bargaining agreements to contain a clause establishing that school management is the responsibility of the school board. Indeed, lack of such a clause may provide the opportunity for an adjudicator to find that actions a school board takes outside of the rights clearly defined in the agreement constitute a prohibited unilateral change in employment conditions. Moreover, a broadly worded or imprecise clause may be interpreted as providing inadequate notice to the union of the specific rights reserved by the board.
Equally important, according to two noted scholars, "[I]t may be that unions accept ambiguity in key contract provisions because they are confident that they can control their implementation in other ways: by filing countless grievances, influencing school board elections, or establishing formal ties with the management team." Accordingly, it is important to place clear, unambiguous management prerogatives into the contract (see examples below).
2. Recognize that not all teachers desire union membership or even support the union. Remove so-called “union security” clauses, or where removal is impossible, limit their impact.
As previously discussed, the U.S. Constitution prohibits forced union membership. Nevertheless, teachers who reject union membership are generally compelled to pay agency fees to the union. There is, however, no Michigan law that actually requires teachers to either become union members or pay union dues or fees. Instead, PERA provides that the school boards and unions may agree to such a contractual term. All 583 contracts examined by the Mackinac Center in 1998 contained such a clause, and we are unaware of any agreement in place today that is free from security clauses. These clauses should be removed. Unions should be required to earn the voluntary financial support of school employees. Freedom of association demands no less.
Examples of Strong and Weak Management-Rights Clauses
In contrast to the broad drafting approach illustrated in the above examples, a school board’s best defense is to specifically set forth its management rights. If it does so, MERC has ruled that the union waives its right to bargain these matters any further.
The following is an example of a strong 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.
(a) Remove the union security clause.
In addition to the unfairness of requiring nonunion teachers to pay dues or fees to a union they do not support, union security clauses "facilitate assertive collective bargaining because they greatly weaken the position of teachers in a district who oppose the union." In other words, union security clauses quash the internal dynamics that keep any organization from running too far from the views of its rank-and-file or even the public.
Moreover, the compulsory unionism of public school employees, maintained by union security clauses, has had profoundly negative effects on school districts. For example, it has lowered teacher morale and professionalism, which in turn has hurt student achievement in the classroom. A 1996 study conducted by Harvard professor Caroline Hoxby found, "Teachers’ unions increase school inputs but reduce productivity sufficiently to have a negative overall effect on student performance." Hoxby also discovered that in addition to lower student achievement, unionized districts also suffer from higher student dropout rates. Accordingly, it is in the interest of student achievement, teacher morale and fairness to teachers who do not seek union representation to remove or limit clauses that secure the union presence.
James Gillette: "I would like to see [union security clauses] removed. However, I believe that we would need some assistance from the legislature to do this. For one single district to take on the MEA is an extremely formidable task."
(b) If removal of the union security clause is not possible, avoid contract provisions that needlessly limit or restrict employees’ freedom to resign from the union.
Many collective bargaining agreements limit an employee’s right to withdraw from a union to a one-month window period, usually August. While legal in Michigan, such a restricted time frame is unfair to teachers seeking agency-fee status. These window periods intrude on the rights of nonunion teachers and should be removed.
(c) If removal of the union security clause is not possible, ensure the maximum constitutional protections to agency fee-payers.
The U.S. Constitution prohibits forced union membership or fees in excess of the services provided. Accordingly, agency fee-payers (nonunion employees) should not be required to pay an amount equivalent to full union dues. Clauses that mandate such dues-equivalent fees should be rejected. Moreover, school district employees who object to the amount of the service fee they are compelled to pay are entitled to have their objections heard before an impartial decision maker. School boards should protect the rights of employees who are agency fee-payers by inserting language into the appropriate section of the union security clause as follows:
"Pursuant to Chicago Teachers’ Union v. Hudson, 106 S. Ct. 1066 (1986), public employees who object to the payment of union dues have a right to pay for only direct collective bargaining costs through the payment of an agency or service fee. Objecting fee-payers have the right to have their objections heard by an impartial decision maker and to have their fees held in escrow until such dispute is resolved."
Jeff Steinport: “I don’t believe that anyone should be forced to join or pay for union activity, so yes, ‘union security’ clauses should be prohibited by state law.”
(d) If removal of the union security clause is not possible, improve it by refusing to serve as the union collection agent and record keeper.
In addition to forcing dues and fee payments, many districts additionally act as union record keepers by transmitting payments to the local union and often separately to state and national affiliates. Moreover, standard language in more than 500 Michigan contracts in 1998 provided the following:
"In the event there is a change in the status of the law, so that mandatory deduction from wages pursuant to the paragraph above is prohibited, the employer, at the request of the Association, shall terminate employment of a bargaining unit member that refuses to authorize deduction of the representation benefit fee. ... The parties expressly agree that failure of any bargaining unit member to comply with the provisions of this Article is just cause for discharge from employment."
In other words, even if automatic dues deduction is prohibited by a change in law after the contract is bargained, the school board still agrees to fire any employee who refuses to authorize an automatic deduction of union dues from his or her paycheck. The school funds spent on these functions could be better directed toward education. Some contracts wisely provide that the school board will not be a party to whatever collection action the union may pursue to collect either dues or service fees.
School boards should further uphold the rights of employees by inserting language that protects teachers who in some way fail or refuse to pay union fees. Language that accomplishes this is found in a few existing agreements and specifies, "[T]he payment of the service fee is a condition of employment: provided, that the nonpayment of the service fee shall not cause the discharge of any teacher." The collection of delinquent fees thus becomes the responsibility of the union, not the district.
3. Limit exclusive representative clauses that grant existing certified education unions more authority than demanded under Michigan law.
Exclusive representation means that the management must deal solely with the recognized or certified union regarding employee wages, hours, and terms and conditions of employment. However, in addition to including such recognition, more than 500 of the 583 contracts analyzed in 1998 contained a separate provision by which the school board agreed not to negotiate with any other teacher organization on nonemployment issues. In other words, if a school board wished to contract with a math, science or professional teacher organization for the purposes of professional development for its staff members, it would need the union’s permission. School boards should remove exclusive representative clauses that require union permission before employees can explore opportunities with professional organizations.
4. Examine and preserve the ability to select from the full range of health care benefit options available to a school district.
Meeting employee expectations as to salaries and benefits is one of the most pressing challenges for school boards. To reserve the most flexibility, school boards should take care to ensure that the collective bargaining agreement retains the ability to obtain quality health care from the best source.
Unfortunately, many school districts are prevented from changing their health care plans because they fail to negotiate the proper language into their collective bargaining agreements. The areas of an agreement that address specific benefits and the agreement’s relationship with the master insurance contracts are critical for control of health care plans, yet in many cases district officials have not evaluated this language for years.
(a) Take advantage of changes in the law to regain control of, and restore flexibility to, health care decision making by removing any contract language that identifies a specific health care insurance administrator.
Budget pressures and responsible management require school districts to maintain maximum flexibility to choose the most cost-effective ways to provide their employees with bargained benefits. Districts that have found themselves contractually "locked in" to using expensive plans now regret surrendering the freedom to choose other administrators.
Accordingly, district negotiators should bargain specific benefits without naming any specific administrator; depending on the negotiated language, a change in insurance administrator or the method of funding should not affect the collective bargaining agreement as long as the benefit levels are bargained in good faith.
Connie Gillette: "The state, a few years ago, gave us the legislation that would allow us to name the insurance carrier, but districts haven’t taken advantage of it because of the roadblocks that are placed by the union when this occurs. The unions have proven how formidable they are, and most administrators and boards of education don’t have the energy or stamina to face the pressure and attacks that would result."
(b) Name the school district as the policyholder of its insurance plans.
As noted previously in Section II, amendments to PERA have made the right to name the holder of a school district’s health care insurance policy a prohibited subject of bargaining. School districts should take this opportunity to name themselves as policyholders of the insurance plans they choose. Districts gain a number of benefits from such a move, including the following:
The ability to acquire the claims history data associated with their chosen health care benefit plan. A claims history is a listing of the type and amount of the medical claims made by employees covered by a health care plan. Having the claims history allows a district to evaluate its own data and is essential for acquiring competitive bids from different insurance providers. Since claims history provides aggregate data for employee populations, this information does not violate individual employees’ privacy rights and is necessary for making sound business decisions.
The chance to manage components of the plan, such as prescription drugs, mental health benefits and provider network development.
The opportunity to purchase supplemental programs independently (e.g., life, disability, dental and vision insurance). This allows school districts to obtain the best value by packaging benefits to fit the needs of the district and its employees.
Some plans, including many MESSA products, do not name the district as the policyholder. Districts with such plans have experienced reduced control over their health care options because the insurance providers often refuse to share certain vital information with school boards and administrators. For example, claims experience data can be withheld, leaving districts unable to fully evaluate bids from other health insurance providers.
(c) School boards should consider the full range of health care options in order to minimize their expenditures while maintaining quality employee coverage.
As discussed in Section VII, there now exists a number of options for school boards to consider when attempting to identify the most cost-effective supplier of benefits. Competitive bidding among a variety of health care options and providers allows school districts to identify the best solution for their district. The savings obtained can be substantial.
For example, districts that have sought bids and ultimately switched from the MEA-linked MESSA to other insurance providers have saved from 6 percent to 28 percent on the cost of providing identical coverage to their employees. The Otsego Public Schools estimated that they would save 10 percent in their contract with bus drivers by switching from MESSA. Frank Webster, former executive director of MESSA and a health care adviser to the Mackinac Center, estimates that Michigan could save $400 million annually if public school districts secured health insurance coverage and terms similar to the private sector.
Finally, and while it may seem obvious, it is important to remember that existing coverage can be fine-tuned for additional savings. Most insurance carriers are willing to suggest options in coverage that can result in substantial savings.
Sandra Feeley Myrand: "We have two cornerstones for what we do: one, quality education; and two, being good fiscal stewards of the community. … And when we sat down and started analyzing everything, MESSA had to be on the table. Or the union had to come back to us and say: ‘We’re desperate to keep MESSA. We’ll agree to everybody paying 10 percent, or, you know, everybody paying $500, or, you know, whatever the dollar amount might be.’ They never put that on the table. They have told us time and time again that the settlement must have MESSA. Now what the contract said recently is that it must be as good as or better than what they have now. So they backed away from the MESSA issue. But all along it’s really been MESSA, and behind the scenes it’s been MESSA all along as well."
[xvi] This sample clause is a composite of good management-rights clauses found in several existing contracts, including the Fowler Public Master Agreement, 1997-2000; Baldwin Community Schools Master Agreement, 1997-2000; and Ida Public Schools masterAgreement, 1996-1999.