ILLINOIS SCHOOL BOARD JOURNAL
Avoid these pitfalls in teacher union contracts
by George M. Kohut
George M. Kohut is assistant superintendent of Belleville Township High School District 201. He previously served as a school board negotiator for numerous Illinois districts during his association with the law firm of Miller, Tracy, Braun, Funk and Miller (1987 to 2005) and the Illinois Association of School Boards (1981 to 1987).
When it's time to bargain a new teacher union contract, school boards and administrators typically focus on the obvious costs associated with the salary schedule, and rightly so. Small changes in multipliers can produce big increases in annual salary costs.
But contract proposals presented by teacher unions usually extend well beyond the salary schedule, and some of those proposals for fringe benefits can be just as costly as changes in the salary schedule. Moreover, some proposals that do not carry price tags may actually cost a great deal by restricting management decisions and the policy power of the board.
The importance of all contract provisions is greatly increased by two key factors:
- The grievance procedure , by law (115 ILCS 5/10(c)) in Illinois, must be included in all teachers union contracts. This means that even innocent-sounding language is subject to the grievance procedure and binding arbitration.
- The concept of "status quo."
A common misconception among school board members and administrators is the belief that the expiration of a collective bargaining agreement terminates the provisions of that contract. If that were true, of course, school officials could then ignore the terms and conditions set forth in the contract.
However, labor law imposes the concept of "status quo" on collective bargaining in education. "Status quo" simply means that contract provisions do not end when a contract expires. Rather, any benefits provided to bargaining unit members continue in force until a new contract is mutually accepted. "Status quo" requirements also pertain to common management practices that the union and the administration consider normal during the ordinary course of business.
"Status quo" means any regrettable language included in the contract does not expire unless it is negotiated out of a subsequent contract. The cost of negotiating the removal of a bad contract provision is usually very high, because a union has no reason to agree with removal unless management offers trade-offs of significant value, usually meaning financial incentives.
Although a school board may be tempted to give away some innocuous sounding contract provision in lieu of a salary increase, the eternal nature of contract provisions and the high cost of removing them should make school boards and administrators extremely diligent in evaluating such proposals.
Some fringe benefits — including employee health insurance and early retirement incentives — represent direct costs to the school district. However, some benefits also are governed by complex state and federal laws that can subject the unsuspecting school board to additional unanticipated costs, including penalties for violations of law. Such programs include:
- health insurance cafeteria plans, retirement plans and other benefits that call into play the federal tax code and Internal Revenue Service;
- early retirement plans that must comply with rules of the Teachers Retirement System; and
- school board assumption of teacher contributions to the retirement system, another feature regulated by the federal tax code as well as state law.
The complex nature of such fringe benefits is beyond the scope of this article, but school boards and administrators need to take extra pains to ensure that such measures meet the requirements of law before accepting them in any union contract. School officials also need accurate projections of costs, both short- and long- term.
What follows is a brief analysis of some non-economic contract proposals that are often presented as demands by teacher union negotiating teams. The proposals may sound innocent but their impact can be toxic. The school board and superintendent need to understand the potential impact of such demands before they end up as clauses in the final negotiated agreement.
These are just four examples of costly contract language. The list is by no means all inclusive. Objectionable contract language typically proposed by the union is presented in italic.
Union proposal — The board shall not discipline employees without just cause, and shall follow the practice of progressive discipline.
As typically presented by the union negotiator, "discipline" is not defined. The administrator is left to wonder: "Is an involuntary transfer considered discipline? What about an unsatisfactory evaluation?"
"Just cause" is not an ambiguous concept. Thousands of arbitration decisions have created standards by which to establish degrees of justifiable discipline. One of the most important of these standards is the concept of mitigating factors that would excuse unacceptable behavior.
Generally, the criteria used by arbitrators when determining just cause are:
- Did the district give the employee forewarning of the likely disciplinary consequences of the employee's conduct?
- Was the district's rule or managerial order reasonably related to either the orderly and safe operation of the district's business or to the performance that the district might properly expect of the employee?
- Did the employer, before administering discipline to the employee, make an effort to discover whether the employee did in fact violate or disobey a rule or order of the employer?
- Was the district's investigation conducted fairly and objectively?
- Did the investigating administrator obtain substantial evidence or proof that the employee was guilty as charged?
- Has the district applied its rules, orders and penalties even-handedly without discrimination to all employees?
- Was the degree of discipline administered reasonably related to (a) the seriousness of the employee's proven offense and (b) the record of the employee in his service with the district?
Obviously, the burden of proof rests with the district, which will be required to prove that it followed the above steps when it administered discipline of virtually any type to an employee (including the discipline of coaches and supervisors of co-curricular programs).
The "just cause" clause in a union contract means that any action of the administrator that is perceived as discipline by the union or employee will be subjected to the above standards, including suspensions without pay and oral or written reprimands.
Union proposal — Prior to discharge, the following actions will be taken if an employee does not perform his or her work properly, fails to follow instructions from his or her immediate supervisor, or violates rules and regulations of school policy:
First Notice: If an employee is not performing his or her work properly or has violated the rules and/or regulations, an oral warning will be given the employee stating the reasons his or her work has not been performed properly or that he or she has violated rules and/or regulations.
Second Notice: If a second notice is needed, the employee may receive a written warning stating the reasons that his or her work has not been performed properly or that he or she has violated work rules and/or regulations or the employee may be suspended with or without pay or discharged from his or her job with the school district depending on the severity of the circumstances. The employee shall have the opportunity to file a rebuttal if he or she does not agree with the contents of the written warning, suspension or discharge.
Several attempts shall be made by the administration to correct deficiencies before termination becomes necessary. Any written warning will only be in effect for one calendar year from the date on that notice. No employee shall be verbally reprimanded in front of students, parents or other personnel. Professional courtesy dictates that reprimands are to be conducted in privacy.
Most professionals would surely agree that employee discipline should be applied fairly and that some unacceptable conduct is remediable. They would also probably agree that some unacceptable conduct is not remediable and should not, therefore, be subjected to progressive discipline.
Egregious acts, such as fighting, theft or gross disobedience, may well be treated as irremediable and subject to a good deal more than an oral reprimand, including dismissal in some cases. Case law in Illinois clearly distinguishes conduct that is remediable from that which is not.
Union proposal — When an employee is required to appear before the administration or the board of education, the employee shall be entitled to have a union representative present, if one is requested.
It is good practice to allow union representation at conferences when discipline is contemplated — oral reprimands, written warnings, suspensions, or termination of employment. The very broad language of this proposal, however, allows for representation at any time the administration requests a meeting, including evaluation conferences or when a principal simply wants to investigate a fight between two students in a teacher's classroom. For some meetings, presence of a union representative may well be considered inappropriate or even a violation of a student's rights.
Union proposal — Teachers shall be informed of all parental complaints. Parents will be required to meet with the teacher regarding any complaints. Prior to any discipline because of a parent complaint, the board or administration shall have a meeting with the teacher.
School officials cannot guarantee that a parent will agree to meet with a teacher. The collective bargaining agreement is an agreement between the union and the school board. Any other persons or organizations should not be addressed in the agreement.
Part Two of this article will appear in the November-December issue of The Illinois School Board Journal and will look at union proposals for regulating employee evaluation, staff reduction and a variety of other typical proposals.
This article is reprinted with permission from the appendix to the third edition of Collective Bargaining and the Illinois School Board Member, copyright 2009 by the Illinois Association of School Boards.
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