AM I REALLY REQUIRED TO PowerPoint Presentation

AM I REALLY REQUIRED TO PowerPoint Presentation

2018-09-24 6K 6 0 0

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BARGAIN OVER . THAT %*#!!!?. Douglas . G. Griffin. Assistant General Counsel, School Board of Broward County &. Author, School Law Answer Manual. WHAT ARE THE TYPES OF BARGAING SUBJECTS?. MANDATORY SUBJECTS. ID: 678417

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Slide1

AM I REALLY REQUIRED TO BARGAIN OVER THAT %*#!!!?

Douglas

G. Griffin

Assistant General Counsel, School Board of Broward County &

Author, School Law Answer Manual

Slide2

WHAT ARE THE TYPES OF BARGAING SUBJECTS?

MANDATORY SUBJECTS

PERMISSIVE SUBJECTS

PROHIBITED SUBJECTS

Slide3

WHY DOES A DISTRICT CARE DURING BARGAINING

WHETHER A SUBJECT IS MANDATORY OR PERMISSIVE?

A school district must bargain over mandatory

subjects; and,

if the parties do not reach agreement, their dispute must be settled through the impasse resolution procedure established in Fla. Stat. §

447.403.

Permissive

subjects may be voluntarily bargained, but they may not be bargained to impasse.

Slide4

WHAT QUESTIONS MUST BE ANSWERED TO DETERMINE WHETHER AN ISSUE CONSTITUTES A MANDATORY SUBJECT OF BARGAINING?

Does the issue

have

a direct

and substantial

impact on

wages, hours, and terms and conditions of

employment?

Doe the issue impact an inherent managerial prerogative?

Does the issue involve a waiver of the union’s right to bargain?

Slide5

What is the test for determining whether an issue impacts terms and conditions of employment?

Florida courts have not developed a precise

test

for determining whether a certain subject is important enough to be considered a

“term and condition

of employment

.”

Most courts therefore have determined the issues on a case-by-case basis, but,

the

key is how direct the impact of an issue is on the well-being of the individual teacher, as opposed to its effect on the operation of the school system as a

whole.

Slide6

What is a district’s duty to bargain over wages, hours, and terms and conditions of employment during negotiations?

If the subject matter of

a proposal

is

purely

a wage, hour,

term or condition of employment, not involving inherent managerial rights, it is a “

mandatory subject of bargaining

” and

either or both parties may insist to impasse on its position. Disagreements on mandatory subject of bargaining must be resolved through the impasse resolution procedure.

Slide7

What matters are considered managerial rights for purposes of determining bargaining obligations?

It is the right of the school district to determine unilaterally

the purpose of each of its constituent agencies

, set

standards of services

to be offered to the public, and exercise

control and discretion over its organization and operations

.

It

is also the right of the school district to direct its employees, take

disciplinary action for proper cause

, and

relieve its employees

from duty because of

lack of work

or for

other legitimate reasons

.

Slide8

When is a matter effecting both a managerial prerogative and a term or condition of employment a mandatory subject of bargaining?

According to Supreme Court, the

courts

are to apply

a balancing test to

determine

whether the

employees’

right to collectively bargain, or management's right to exercise control and discretion should predominate

.

According to PERC, the district must negotiate such decisions unless the

matter involves

management

prerogatives

directly related to the public employer's fundamental policy

prerogatives.

Slide9

May a School Board impose a waiver of bargaining rights on the union?

No. A

waiver of the statutory

bargaining rights

provided by Section 447.401, Florida

Statutes, is

a permissive item of bargaining which may not be imposed by the legislative body.

Slide10

What are the basic rules for determining whether an item is a mandatory subject of bargaining?

Matters only impacting wages, hours, terms or conditions of employment are mandatory.

Matters only impacting

managerial prerogatives

are

permissive.

Matters impacting both managerial prerogatives and terms and conditions of employment must be balanced to determine which predominates.

Matters involving a waiver of a union’s right to bargain are permissive.

Slide11

Let’s test our knowledgeBonuses to newly hired (e.g. STEM) teachers.

MANDATORY SUBJECT

Supplemental pay for extracurricular activities.

MANDATORY SUBJECT

Subcontracting services that will replace existing employees.

PERMISSIVE SUBJECT

Slide12

Let’s test our knowledge (cont’d)

Evaluation Criteria

PERMISSIVE SUBJECT

The number of instructional periods teachers must teach

MANDATORY

SUBJECT

Reducing the length of the workday

MANDATORY

SUBJECT

Slide13

Let’s test our knowledge (cont’d)Mandatory furloughs to alleviate economic shortfalls

PERMISSIVE

SUBJECT

Excluding discipline issues from the collective bargaining agreement

MANDATORY SUBJECT

Job descriptions or job classifications

PERMISSIVE

SUBJECT

Slide14

Let’s test our knowledge (cont’d)Duration clauses effective longer than 1 year.

MANDATORY SUBJECT

A salary proposal conditioned on an agreement to waive the right to bargain over changes in insurance

PERMISSIVE

SUBJECT

Settlement of pending grievance

PERMISSIVE SUBJECT

Slide15

Once a permissive subject is included in the agreement, may the parties insist to impasse that it continue to be included in future years?

No. Even

when parties agree to include a

permissive

subject of bargaining in a contract, that voluntary agreement does not mean that the

other party

may

insist to impasse that the provision be continued

in

future

negotiations.

Slide16

Does a district commit a ULP if it still has permissive subjects of bargaining in its proposals when the union declares impasse?

No, so long as the district modifies its proposals to eliminate permissive subjects from its proposals before final resolution

.

If

the Section

447.403,

impasse resolution process is utilized, neither party may insist that a special magistrate consider a

nonmandatory

subject of bargaining.

In addition,

a legislative body may not impose a

nonmandatory

subject such as a waiver of a union' s right to bargain over mandatory subjects of bargaining.

Slide17

WHY DOES A DISTRICT CARE DURING THE CONTRACT

WHETHER A SUBJECT IS MANDATORY OR PERMISSIVE?

As a general rule, a public employer may not unilaterally alter the

status quo

of a mandatory subject of bargaining, i.e., wages, hours, and terms and conditions of employment of its employees during the term of a collective bargaining agreement.

Slide18

How is the “status quo” established in the event that an express term and condition in the collective bargaining agreement conflicts with past practice?

When terms or conditions of employment are in a contractual provision, the status quo is determined by reference to the precise wording of the relevant contractual provision.

Slide19

How is the “status quo” established in the event that either the agreement is either ambiguous

or

silent regarding

a term or

condition?

A change to the “status quo” is more

than that the employer changed a practice involving a mandatory subject of bargaining.

It

must be established that the past practice that has been

altered:

had

been unequivocal,

had

existed substantially unvaried for a significant period of time prior to the change, and

could

reasonably have been expected by bargaining unit employees to have continued unchanged.

Slide20

When may a district unilaterally alter the status quo of a mandatory subject of bargaining during the contract?

A district

may

only unilaterally

alter the status quo of a mandatory subject of bargaining if it can

establish:

a

clear and unmistakable waiver by the union of the right to bargain over the subject,

legislative

body action taken after impasse,

or

extraordinary

circumstances requiring immediate action.

Slide21

May a district unilaterally alter the status quo of a mandatory subject of bargaining after term of a collective bargaining agreement has expired

?

Generally, no. Following the expiration of a collective bargaining agreement, an employer is prohibited from unilaterally altering the status quo of mandatory subjects of bargaining.

Slide22

May a district unilaterally alter the status quo of a subject that is an inherent managerial right during the term of an agreement without bargaining over the

decision?

Yes. If the subject matter of the decision is an inherent managerial right, not involving a term or condition of employment, the school district may act unilaterally because the matter is considered a permissive subject because it falls within managerial prerogative.

Slide23

Is a district obligated to bargain over any

“impacts”

on terms and conditions of employment relating to implementation of a subject that is an inherent managerial right?

Yes, but only if a timely demand for impact bargaining is made by the union which identifies

specific

negotiable

effects

on wages, hours, terms and conditions of employment. An effect is negotiable if it is “direct and substantial.”

Slide24

May a district proceed to alter the status quo of a subject that is an inherent managerial right before giving the union a reasonable opportunity to negotiate impacts?

No. The

district must afford the union reasonable

time to impact bargain

prior

to implementation of a

change.

Slide25

Is the district required to complete the entire impasse resolution process before proceeding to alter the status quo of a subject that is an inherent managerial

right?

No, although the district must allow for a reasonable opportunity for the union to identify and negotiate impacts, the

impasse process contained in Section

447.403, need not

be completed prior to modifying

the status quo. After a reasonable opportunity to negotiate the impacts, the district may declare impasse, implement its decision, and thereafter proceed to complete the impasse process.

Slide26

Let’s test our knowledgeAs has been done in the past, adjusting cafeteria workers hours up or down to meet needs (agreement is silent)

Strictly enforcing language in the agreement for the first time that all mandatory extra-duty time for teachers shall be compensated at $20/hr.

Adding a new extra-curricular activity that you want to pay the same as all of the comparable coaches

Slide27

Let’s test our knowledge (cont’d)

Adding hour of instruction to student day because it is in the lowest 300

Changing percentage of dependent health insurance premium contribution (not stated in the agreement)

Changing health insurance benefits (e.g. deductibles, co-pays, etc.) where plan

is mentioned by reference (e.g.

“the

health insurance plan provided by

the Board.”)

Changing health insurance benefits (e.g. deductibles, co-pays, etc.)

per recommendation of the long-established district insurance committee.

Slide28

What are prohibited subjects of bargaining?

Provisions

of

an agreement

are null and void from the outset only when

they:

Involve

unlawful subjects of bargaining,

Are

contrary to a statute or constitutional provision, or

Seek

to achieve a purpose contrary to public policy.

Slide29

What are examples of prohibited subjects of bargaining?

Smoking on Campus.  

Binding interest arbitration.  

“Just cause” for non-renewal of probationary teachers.


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