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Illinois School Board Journal
November/December 2006
So just what is collective bargaining?
by J.Gregory Reynolds and William H. Phillips
J. Gregory Reynolds is a retired superintendent of schools, now an adjunct faculty member at the University of Illinois-Springfield. William H. Phillips, also a former superintendent, is an associate professor of educational leadership at UIS
Those who are new to school boards … and maybe even some veterans … often hear the term "collective bargaining" used when the time comes to negotiate teacher and support staff contracts. But just what is this process and why is it important for boards to know how it's accomplished?
Collective bargaining is a process between an employer (in this case a school district) and its employees who share a "community of interest" (such as certified teachers or support staff). The process determines everything from wages and hours to terms and conditions of employment where employees have organized pursuant to Illinois law.
The end result of collective bargaining is a binding contract that describes employees' rights and benefits. Because a collective bargaining contract requires the participation and approval of the union, school board members and administrators may believe it restricts the flexibility of the school management to make decisions.
When an issue is covered by a contract, it restricts the discretion of school boards and administrators to make what they may feel to be key decisions, such as limiting management's ability to bestow individual rewards for performance. However, a collectively bargained employment contract also limits the ability of the board and administration to confine and restrain classroom instruction, which can be perceived as hindering classroom innovation.
Whatever the limitations and restrictions, board members should be aware of collective bargaining issues. Regardless of the process used, it is important for a bargaining member to focus on the labor contract they are negotiating, not the process they are using. The most important item for any bargaining team is to know the objective: What is really important to the district?
Bargaining history
The main body of law in the United States governing collective bargaining in the private sector is the National Labor Relations Act (NLRA). It explicitly grants employees the right to collectively bargain and join trade unions. The NLRA originally was enacted by Congress in 1935 to regulate interstate commerce. However, because this act did not control public sector collective bargaining, the Illinois Educational Labor Relations Act (IELRA) went into effect January 1, 1984.
The Illinois General Assembly declared that the purpose of the IELRA was to promote orderly and constructive relationships between educational employees and their employers, with the philosophy that it was necessary to have a well-balanced relationship between the two parties.
Under this act, the General Assembly granted educational employees the right to organize and freely choose their representative; required educational employers to negotiate and bargain with employees' representatives and to enter into a written agreement with these representatives; and established procedures to protect the rights of educational employees, their employer and the public. At the same time, the General Assembly also created the Illinois Educational Labor Relations Board (IELRB) to administer and oversee this process.
The IELRA was the outgrowth of the teacher union movement in the 1960s and '70s that challenged school boards across Illinois with the goal to establish labor-management relationships that were patterned after the traditional industrial model that had evolved under the NLRA in 1935. Until then, Illinois school boards decided for themselves whether to recognize and bargain with local unions.
There was no consistent pattern during the '70s and '80s regarding recognition and bargaining with local unions. Some school employee organizations demanded to bargain an agreement while others did not. A great deal of local controversy developed for school boards through the early '80's over the question of union recognition, but with the enactment of the IELRA in 1984, this recognition dispute came to an end.
On the employee side
Unions almost always see collective bargaining as beneficial. Proponents of collective bargaining, such as the Illinois Education Association (IEA) and Illinois Federation of Teachers (IFT), believe that the process, since it requires collaboration between a union and a school district and results in higher compensation and different working conditions, will promote an atmosphere of academic excellence.
By organizing and acting in concert, teachers and other union members feel they achieve bargaining parity with their employers. Through collective bargaining, wages and benefits are taken out of competition and employment conditions are standardized throughout the bargaining unit.
Normally, unions also believe that collectively bargained wages and conditions are almost always more beneficial to their members than what a board of education would offer without a union. And statistics would seem to bear that out.
According to the U.S. Department of Labor, on average in the United States, union workers enjoy wages that are 27 percent higher than those of nonunion workers. Union workers also are more likely to be covered by medical and pension plans. Approximately 83 percent of union workers in 2003 were covered by retirement plans, in contrast to only 45 percent of nonunion workers.
In the same year, 60 percent of union workers were covered by medical insurance plans, and an additional 23 percent of union workers were covered by plans that combine medical/dental/vision components. In contrast, only 44 percent of nonunion workers were covered by medical insurance.
Many times the source of workers' collective bargaining power is their credible threat of collective action against their employer, which in the case of teachers' unions, is the school district. Many district employees fear that without their union, administrators and board members would be free to act as dictators in the school and to set or change conditions for employees as they choose.
With union representation, employees believe they achieve more control over their work lives. Without a union, most employees feel they can only expect the minimal standards and rights established by state and federal law.
Employees also may believe that the application of these standards may be lax because they, as workers, are in many instances unaware of their rights. With a union, employees have the possibility of winning a wide range of benefits that otherwise could be withheld by the employer, including sick leave, employee displacement, grievance procedures, etc. However, with a union, employees become workplace advocates for themselves.
Lastly, many employees believe that when workers win better wages and benefits through collective bargaining, they also need a written contract that is binding and enforceable in a court of law. They feel this clearly establishes that the school board's formerly unlimited discretion is now formally constrained by the terms of the collective bargaining agreement.
On the employer side
On the other side of the bargaining table, a board of education is elected by the community and responsible for governing the schools in the district. If the board fails to carry out this responsibility to the satisfaction of the community, the community has the power, through the electoral process, to remove and replace them with others. Thus, the board of education is accountable to the community that, in turn, holds electoral power.
An outside association such as the union, which is elected to represent teachers in a school district, on the other hand, is responsible only to its members. It is important for boards of education to distinguish this fundamental difference in accountability and to draft collective bargaining agreements accordingly.
Prior to initiating any collective bargaining negotiations, a school board and local administrators should have a clear understanding of their public responsibility for establishing policies and operating the district's schools efficiently. Also, school boards should also realize that good negotiations require multiple skills, and the use of an experienced negotiator needs to be considered before entering into any contract talks.
The authority of school boards has its foundation in Illinois law. In addition, decisions from the Illinois Education Labor Relations Board, Illinois courts and other binding arbitration decisions establish certain authority exclusively in school boards. These provisions provide a basic framework within which collective bargaining agreements should be negotiated.
The IELRA (115 ILCS 5/1) states: "Unresolved disputes between the educational employees and their employers are injurious to the public, and the General Assembly is therefore aware that adequate means must be established for minimizing them and providing for their resolution."
The Act goes on to say: "Recognizing that harmonious relationships are required between educational employees and their employers, the General Assembly has determined that the overall policy may best be accomplished by (a) granting to educational employees the right to organize and choose freely their representatives; (b) requiring educational employers to negotiate and bargain with employee organizations representing educational employees and to enter into written agreements evidencing the result of such bargaining; and (c) establishing procedures to provide for the protection of the rights of the educational employee, the educational employer and the public."
Therefore, school boards need to view each union proposal against that framework. The question to be asked: Does this union proposal limit the district's ability to make decisions necessary to implement policies that protect the public's interest?
Collective bargaining is a complex process that can, if not developed properly, obstruct the ability of the board of education to make timely decisions, particularly regarding wages and personnel. Board members must therefore also ask if the agreement they are entering into will help improve relations with the employees or make a working relationship more difficult.
In short, to effectively deliver educational services to children, the school administration must have the ability to put the right teacher, with the right training, in the right place at the right time. While important in attracting and retaining good teachers, teacher salary concerns can be overblown in comparison to the real issue of control of the educational system.
To assess the measure of control a school board and teacher unions exert over the system, boards and administrators are required to read the contractual fine print. In some districts this may require a substantial number of pages in the actual agreement, along with many more pages of arbitration decisions and court rulings that may interpret the agreement. The success or failure of schools is more a matter of how the system, on a daily basis, delivers education services to students.
What it looks like
Although labor relations in many schools are based on the traditional bargaining model followed in the private sector, many are not. Though all school districts are subject to Illinois law, not all districts approach collective bargaining in the same way. Labor relations in a school district may not resemble the traditional industrial model at all. Along with the traditional format of bargaining, there are also the "win-win" or interest-based formats.
The traditional process centers on positions and solutions. It is a power-oriented, politically based method of bargaining. Interest-based, or "win-win" bargaining, has received serious attention from many negotiators, both union and management. However, although many discuss it, actual examples of interest-based bargaining are still fewer than traditional bargaining. Not surprisingly, both labor and management find it difficult to embrace some of the changes associated with interest-based bargaining in today's atmosphere of scarce resources.
The foremost difference between interest-based and traditional approaches to negotiations is the underlying assumption each party brings to the process. Interest-based bargaining is rooted in the idea that the fundamental interests (or concerns) of labor and management typically complement one another. This differs sharply from the traditional view, which assumes that the parties' fundamental interests conflict with one another despite their ability to find some common ground.
Indeed, traditional collective bargaining is largely based on the premise that the outcome of negotiations creates winners and losers, and both parties use any available leverage to make sure they are the winners. Collective bargaining laws in both the public and private sectors are written to embody this assumption. Laws regulate both sides' use of power. Those boards and unions who choose to use the unconventional idea of interest-based bargaining need to understand that the differing interests of both sides are not easily reconciled to both sides' satisfaction. The resolution of issues may be especially difficult if dollars are not available.
Interest-based bargaining goes by a host of names: "consensus bargaining," "problem-solving negotiations," "win-win," "mutual gains," "collaborative bargaining," "principled negotiations" and others.
In Getting to YES, Negotiating Agreement Without Giving In, Roger Fisher and William Ury define five characteristics of interest-based negotiations:
Essential to understanding interest-based processes is a thorough grasp of the distinction between a "position" and an "interest."
A position, or proposal, is the chosen solution to a particular problem or goal. It may be one of many alternatives that meet a party's needs.
An interest, on the other hand, is the basic need or concern that is addressed by the proposal. In short, the search is for the best possible solutions for both parties.
Intense communication and collaboration is needed in this process. If this is accomplished with success, both parties feel that they have "won."
Above all, bargaining members should be flexible with the process, cooperate in the process, and by all means be able and willing to adapt the process when necessary. Lastly, always remember that the real goal of the school board is to create and maintain the best possible educational system for the children in the district. Collective bargaining is just part of the means to that end.