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Take a Look at Your CBA Language

Joel Gerring

By Joel Gerring, MASB Assistant Legal Counsel

DashBoard, March 22, 2017

Bargaining season is in full swing and while your labor negotiation team is busy discussing steps, lanes, calendars and insurance contributions it is important not to overlook the importance of the contract language itself. The MASB Legal Team continues to come across contracts that include prohibited subjects of bargaining, illegal agency shop provisions and clauses that mandate union dues deductions, among other problems.

It has been more than five years since the seven additional prohibited subjects of bargaining officially became part of the Public Employment Relations Act. Likewise, we are coming up on the four-year anniversary of Right to Work having taken effect. Most school districts have negotiated at least one, if not multiple, collective bargaining agreements during that time. If your teacher contract still contains illegal or prohibited subjects of bargaining there is a very real danger that your district will find itself in court, or before an arbitrator or MERC ALJ, attempting to explain why it is refusing to adhere to an illegal or prohibited contract provision, despite the fact that it remains a bargained for provision within the agreement.

Agency shop language and mandatory auto-debit provisions for union fees are easy to recognize and eliminate. What is often more difficult to spot are vague clauses that appear to direct administrators and unions to “collaborate” on “solutions” but include, as part of the potential collaboration process, an understanding that the two sides must agree on whether or not a layoff or a reassignment is the appropriate course of action. Take the following teacher/pupil ratio language:

In the event that a particular class exceeds appropriate ratios the union, along with the administration, will meet to discuss and agree upon a proper remedy, which may include an examination of creating a combined grade classroom and assigning teachers to that classroom based upon mutual agreement.

This language appears to simply outline remedies for an overcrowded classroom but, in fact, demonstrates that the sides “negotiated” a possible teacher placement matter, which is prohibited. Likewise, a clause that states “half-time teachers must be evaluated by each building principal, according to the law, in each building where they work” might also appear to be little more than a proviso regarding how to go about evaluating a part-time teacher. Again, however, the very presence of this statement signifies that the parties “bargained” over language that clearly touches upon the teacher evaluation process (which is prohibited). Hence, regardless of whether the clause itself is considered an accurate interpretation of the law, there should be no evidence in your contract that prohibited subjects of bargaining were ever “bargained for” in any manner.

Finally, it is also important to review your contract language for simple grammatical problems and ambiguities that can lead to confusion and/or litigation, down the road. This type of review generally requires not only a professional eye, but an objective one as well. A provision that states, “Employees can elect to take in lieu of payments in an amount that is proportionate” may make perfect sense to the parties sitting around the negotiation table, but individuals attempting to interpret this language from outside of the drafting process, such as future administrators, arbitrators or judges, will likely be at a loss as to its full implications. Does this sentence relate to insurance? Has an “in lieu of” payment been defined elsewhere in the contract? Is there an agreed upon formula for defining a “proportionate amount?” A professional set of eyes that can look at the entire contract without any preconceived notions (just as an arbitrator or judge would) is your best bet to catch these types of problems before they result in a grievance or litigation.

MASB has regular and adjunct staff who can assist your district either as a chief negotiator or in a supporting role for negotiations with teacher or support staff unions. If you are interested in learning more, feel free to email me at jgerring@masb.org or call 517.327.5922.

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