Collective Bargaining

The term collective bargaining refers to contractual negotiations between employers and groups of employees to determine specific conditions of employment. The results of these negotiations are referred to as collective bargaining agreements. In most instances, school employees are legally represented in the bargaining process by unions or some other labor organizations. Collective bargaining is governed by a variety of different laws, including administrative agency regulations, federal and state statutory laws, and judicial decisions. Even though collective bargaining laws vary considerably from state to state, the majority of these statutes include the following minimum provisions: a duty to negotiate in good faith, formal appeals procedures, and contractual provisions discussing the ability of teachers to strike.

The National Labor Relations Act, a comprehensive federal statute, covers bargaining practices in the private sector. On the other hand, the rules regulating collective bargaining for public employees, including teachers, vary widely from state to state. Since 1959, when Wisconsin became the first state to allow collective bargaining by its public sector employees, the vast majority of states have permitted public school teachers to bargain collectively. Only the states of North Carolina, Texas, Utah, and Virginia expressly prohibit collective bargaining with school district authorities.

Collective bargaining law for public schools is very jurisdiction specific and varies considerably by state. The passage of the No Child Left Behind Act in 2002, which requires states to collect and distribute information pertaining to student achievement, has helped bring more attention to the legal issues associated with collective bargaining practices in schools. This entry describes the fundamentals of these practices.

Bargaining Units

In public education, employee unions must establish officially recognized bargaining units in order to engage in contractual negotiations with their school boards. Bargaining units are officially certified as the exclusive bargaining representatives for specific sets of employees such as teachers. In most instances, certification to become a bargaining unit occurs through state public employment relations boards or labor relations boards. In the majority of states, elections must take place before the organizations selected by the majority of the employees can be certified, or approved, to serve as their exclusive representatives in collective bargaining negotiations. School boards are not allowed to interfere with either the creation or certification of bargaining units.

Under the majority of state collective bargaining statutes, units include employees who share a community of interests in the terms and conditions of employment that most effectively represent their interests. Community of interests means that the employees represented, usually teachers, have substantial mutual interests and that the union represents their concerns. Professionals, distinguishing typically between teachers and administrators, and nonprofessional school employees, such as secretarial or maintenance staff, must usually form separate bargaining units, with teachers in one unit and other, nonprofessional staff typically, but not always, in another. In some circumstances, professional staff may have more than one unit. Once members formally elect their exclusive bargaining representatives, or unions, school boards are legally bound to deal exclusively with those organizations; the failure of school boards to meet with exclusive bargaining representatives can constitute unfair labor practices.

Legal Duty to Bargain in Good Faith

One of the most important legal obligations between public school employees and their boards in the collective bargaining process is the requirement to bargain in good faith, which means that the parties involved in negotiation must make a genuine effort to resolve their contractual differences. Courts have continually ruled that bargaining in good faith includes the willingness to meet at mutually reasonable times as well as a sincere desire to reach agreement through the bargaining process. Additionally, the legal obligation to bargain in good faith requires school boards not to penalize, discriminate, or intimidate employees based on their union membership.

The majority of states that recognize the right of public school teachers to collectively bargain divide the subjects of bargaining into three distinct categories: mandatory, permissive, and prohibited subjects. Teachers and their school board may bargain over contractual provisions, a sampling of which includes academic freedom, curriculum, wages, salaries, retirement benefits, workload, tenure, promotion, reclassification, evaluation procedures, grievance procedures, student discipline, sick leave, and sabbaticals. Overall, legal determinations of whether collective bargaining subjects are mandatory, prohibited, or permissive differ considerably by state. In numerous instances, state collective bargaining laws are not clear as to whether specific bargaining subjects are mandatory, prohibited, or permissive. Consequently, state courts need to rule on a variety of collective bargaining subjects across numerous legal jurisdictions.

Subjects of Collective Bargaining

Mandatory Subjects

Mandatory subjects of collective bargaining in public schools refer to those issues about which boards must bargain with their employees. In most instances, mandatory subjects of collective bargaining refer to issues associated with wages, work hours, and work conditions. The failure of school boards to negotiate a mandatory subject of bargaining violates their duty to bargain in good faith and constitutes an unfair labor practice. Unfair labor practices refer to board interference with teachers in the exercise of their legal labor rights. Generally, work related issues in public schools include benefits, salaries, work load, employee hours, and grievance procedures; these are legally considered mandatory subjects of collective bargaining. Additionally, courts have recently included antinepotism rules as mandatory subjects of collective bargaining.

State courts have adopted two major approaches to evaluating whether bargaining subjects are mandatory: the step approach and the step-plus balancing approach. The step approach requires courts to use a two- or three-part legal test to consider whether issues are mandatory subjects of collective bargaining. In the step-plus balancing approach, courts apply a more rigorous rules analysis with a legal balancing test. Insofar as collective bargaining law varies from state to state, and courts review a myriad of different factual situations, it is difficult to make a definitive categorization of what is a mandatory subject of collective bargaining. Most of the legal disputes that public school employees bring over mandatory bargaining protection involve salaries, retirement, and pension issues.

Permissive Subjects

Permissive subjects of collective bargaining in public schools refer to those topics of bargaining that may be included if both parties agree in the negotiation process. Often, permissive subjects of collective bargaining refer to management decisions that only remotely impact school personnel matters. Unlike mandatory subjects, boards have no legal duty to bargain over permissive subjects. When considering whether topics are permissive subjects of collective bargaining, it is imperative for the courts to review statutory and common law, because mandatory or prohibited bargaining subjects in one state may be allowed in others.

Prohibited Subjects

Prohibited or illegal subjects of collective bargaining in public schools are those subjects over which school boards or school unions may not negotiate, because such agreements would contravene state statutes or court decisions. Examples of prohibited subjects of collective bargaining in public schools include issues relating to staffing, transfer and assignment, curricula, and the length of the school year. For example, the ability of public school boards to hire and terminate their employees is a prohibited subject of bargaining. Another prohibited subject of collective bargaining in public schools involves financial contributions from boards to school unions, such as a board’s funding of members’ attendance at union-related functions without union reimbursements. States differ on whether some subjects of bargaining are prohibited. State courts vary, for instance, on the issue of whether residency requirements should be a condition of employment and a permissive or prohibited subject of collective bargaining.

Resolution of Disputes

The majority of collective bargaining disputes involve the interpretation of issues found in collective bargaining agreements. When unions and school boards are unable to reach agreements in collective bargaining contracts, it is said that they have reached an impasse. An impasse in the collective bargaining process occurs when the parties have reached their final positions but disagree over one or more subjects of a contract. When bargaining agreements reach an impasse, most states mandate several mechanisms for facilitating the resolution of parties’ disagreements. These methods include mediation, fact-finding, and arbitration.

In mediation, a third party mediator is selected by a state labor relations board or through the mutual agreement of the school board and bargaining unit. Mediation is often a precursor to fact-finding or arbitration.

Fact-finding is also referred to as advisory arbitration. A neutral third party intermediary is selected by a state labor relations board or through mutual agreement of the school board or bargaining unit. A fact finder has the power to conduct hearings and can collect evidence from the parties and any additional outside sources.

The use of arbitration to settle labor disputes is strongly advocated by public policy in the United States. Historically, the legal policy favoring arbitration has been advanced in a famous collection of three Supreme Court labor cases called the steelworkers’ trilogy. These three cases are United Steelworkers of America v. American Manufacturing Company (1960), United Steelworkers of America v. Warrior & Gulf Navigation Company (1960), and United Steelworkers of America v. Enterprise Wheel & Car Corporation (1960). Unlike mediation and fact-finding methods of dispute resolution, an arbitrator’s decision is legally binding on the parties involved. Subjects of bargaining that are not subject to arbitration include issues of managerial discretion, including issues such as teacher assignments, teacher workforce size, and the nonrenewal of nontenured teachers’ contracts.

Kevin P. Brady

See also Arbitration; Contracts; Impasse in Bargaining; Mediation; Unions

Further Readings

  • Brady, K. P. (2006). Bargaining. In C. J. Russo (Ed.), The yearbook of education law: 2006 (pp. 101–110). Dayton, OH: Education Law Association
  • Dodd, V. J. (2003). Practical education law for the twentyfirst century. Durham, NC: Carolina Academic Press. 

Legal Citations

  • No Child Left Behind Act, 20 U.S.C. §§ 6301 et seq. (2002). 
  • United Steelworkers of America v. American Manufacturing Company, 363 U.S. 564 (1960). 
  • United Steelworkers of America v. Enterprise Wheel & Car Corporation, 363 U.S. 593 (1960). 
  • United Steelworkers of America v. Warrior & Gulf Navigation Company, 363 U.S. 574 (1960).