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).
Contract proposals presented by teacher unions usually extend well beyond the salary schedule, and even proposals that do not carry price tags may actually cost a great deal through the restrictions they place on management decisions and the policy powers of the board.
The importance of any contract provision is intensified by some powerful realities:
In the September-October issue of The Journal, we looked at pitfalls presented by union proposals for certain fringe benefits and employee discipline procedures. Here are some additional union proposals, in italics, that present the school employer with some dangerous pitfalls.
Employee evaluation
Union proposal — Non-tenured teachers shall be evaluated at least three times in each school year. Tenured teachers shall be evaluated at least once a year.
Evaluating all non-tenured teachers at least three times a year sounds good. In reality, however, very few school districts have the administrative resources necessary to complete that many evaluations. State law requires that tenured teachers be evaluated at least once every two years.
Union proposal — The supervisor shall acquaint each employee with the evaluation procedures, criteria and evaluation form to be used. No formal evaluations may take place until such orientation has been completed.
This is an example of contract language that sounds like harmless common sense. However, such provisions subject virtually every administrative task to the grievance procedure. Overlooking even a minor aspect of the evaluation procedure becomes a contract violation. The school board should ask itself whether the teacher union contract is an appropriate place for administrator job descriptions.
Union proposal — The administration shall evaluate each teacher in writing using an evaluation instrument designed by the union and the administration and shall provide a copy of said evaluation to each teacher. Each formal evaluation shall include an in-class observation of the teacher's performance.
If the school board believes that the supervision of employees is the responsibility of management, then the evaluation instrument should be designed by the administration — not the union. And keep in mind that making evaluation subject to the union contract also makes any procedural violations or adverse ratings of a teacher subject to the grievance procedure.
Union proposal — The evaluator shall have a post conference with the employee within five working days following the formal evaluation observation of the teacher. The employee shall have the right to challenge any adverse ratings listed on the evaluation instrument.
Few if any school districts have the administrative staff necessary to provide a post conference within five days of the formal observation. Moreover, where any teacher is allowed to challenge any adverse rating, the principal will likely be fearful of open and honest comments.
Again, allowing such a provision in the contract will probably lead to contract violations and unnecessary grievances.
Union proposal — In all instances, evaluation procedures for all staff shall be conducted in conformance with the district evaluation plan jointly developed by the union and the administration.
Again, input should advisably be obtained from the union, but responsibility for the final evaluation plan should rest with the board and administration.
Reductions in force
Most teacher union contracts in Illinois probably contain some language regulating staff reductions — or layoffs. Although the Illinois School Code sets legal requirements for reductions in force (RIF), the statute is silent on some aspects of staff reduction and it is in the interests of both board and union to clarify those matters. In addition, the law allows the school board and union to provide their own method for determining the sequence of dismissals.
In the Tenth Edition of Illinois School Law Survey (2008), author Brian Braun summarizes the Illinois law this way:
"A school board contemplating a reduction in teaching force must first remove or dismiss all non-tenured teachers in a particular position before removing or dismissing any tenured teacher who is legally qualified to hold the position.
"As between tenured teachers, the teacher with the shorter length of continuous service to the district must be dismissed first unless an alternative method of determining the sequence of dismissal is established in a collective bargaining agreement.
"A school board must comply with all procedures required by its collective bargaining agreement in conducting a reduction in force."
Because the law does not address some key issues in staff reduction, the school board should seek some well-crafted clarifications. Competent legal guidance is essential in drafting such language, but in general terms the board should seek language that, among other things:
Unions, on the other hand, will seek to make staff reductions as difficult as possible. Their object, of course, is to prevent layoffs. For example:
Union proposal — The school board may reduce staff only when there has been a substantial reduction in state and local monies. The board shall first remove or dismiss all probationary teachers before dismissing tenured teachers.
A board may wonder what exactly is meant by "substantial reduction." The board also might wonder why the district should lay off a probationary chemistry teacher when the aim is to eliminate a teaching position in English. (Illinois law limits bumping rights to teachers who are qualified to hold a position. The union proposal ignores that limitation.)
The real issue is whether it would be good public policy for the board to surrender its right to determine staff size.
Other union proposals typically seek to grant seniority rights to non-tenured teachers and extend recall rights to two years (one year is provided in the statute). Again, these proposals limit the ability of the board and administration to make staffing decisions and should be evaluated with the help of legal counsel.
Other typical proposals
Union proposal — When a vacancy arises, the superintendent or designee shall post such vacancy notices in all teachers' lounges for at least two weeks.
As a courtesy to an individual employee, the board shall mail individual vacancy notices to the employee's home address during the summer months.
Current employees shall be given primary consideration for all vacancies of the district if qualified. In the case of equal qualifications, the most senior teacher shall be given preference.
Here are some problems with these provisions:
Again, the discretionary authority of the board and administration need not and should not be restricted by collective bargaining language. Current employees can be notified and encouraged to apply. They can then compete for job openings on an equal basis with non-employees.
Union proposal — All terms and conditions of employment, including wages, hours of work, extra compensation for duties outside regular work hours, relief periods, leaves, and general employment conditions of all bargaining unit members/positions shall be maintained at not less than the highest minimum standards in effect for such bargaining unit member/position at the time this agreement is signed.
Applicable law in Illinois requires school boards to bargain with employee unions over the impact of changes that affect working conditions. The above proposal goes further and requires the board to get union approval of the change itself, not merely the impact.
For example, the maintenance of standards clause requires the board to get union approval in order to reduce staff, reduce the number of co-curricular activities, change the number of periods in a school day, change teaching assignments, etc.
Union proposal — The existing policies and procedures of the school district are hereby incorporated into this agreement, provided these policies and procedures may neither countermand nor be contrary to the other terms and conditions of this agreement.
This clause makes all school board policies and administrative rules subject to the grievance procedure and binding arbitration. Further, any changes to those policies or rules require union assent.
Union proposal — The employment year for all full-time teachers shall not exceed 176 pupil attendance days and four institute days. The salary schedule shall be based on the maximum calendar of 180 days. Prior to adoption of the calendar by the board, the board and the union will meet and mutually agree to the school calendar for the following school year.
By law, adoption of the school calendar is the exclusive duty of the board of education. Moreover, there may be years when the board cannot limit the work year to 180 days.
Unless the board wishes to give the union an equal voice in establishing the school calendar, this clause should not be allowed in the contract. Rather, the board should seek the union's input but retain for itself the final decision regarding the calendar.
Union proposal — The parties agree that applicable Illinois statutes and case law and the Constitution of the United States and the state of Illinois are hereby incorporated into this agreement.
This clause makes all laws — constitutional, statutory and judicial — subject to the grievance procedure and subject to arbitration. Both the union and the individual employee already have access to the courts for alleging violations of these laws. This clause gives them a second avenue of appeal with access to an arbitrator and gives the arbitrator the authority to interpret all laws.
The proper review should be through the judicial system and not through an administrative law judge (arbitrator).
Finally, be sure to keep in mind that it is very costly to litigate the interpretation of language in a collective bargaining agreement. Be cautious in examining proposed contract language. With "status quo" requirements, any language included in the collective bargaining agreement may be impossible to delete or modify without expensive trade-offs.
Editor's note
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.