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California Collective Bargaining for Public Schools:

Time to Change

Part 1:  The Issues

After thirty years of public school employers negotiating collective bargaining agreements with represented employee groups under the statutory provisions of the Educational Employment Relations Act[1], it is time to evaluate, assess, and where needed, revise the law.  While such an assessment may not be popular, especially with labor groups, there has been sufficient animosity among all parties as well as among political leaders to warrant an examination of the effectiveness of the law.  In addition, there have been commentaries on barriers to student achievement and needed educational reform caused by rigid work rules and contractual provisions[2].

The Educational Employment Relations Act (EERA) was passed by the California Legislature in 1975, signed into law by then-Governor Jerry Brown, and became effective on January 1, 1976.  The enabling legislation was Senate Bill 160, authored by Senator Albert Rodda (D-Sacramento) after considerable negotiations between the school labor and management organizations.  Senator Rodda crafted a compromise bill that balanced mandatory subjects of bargaining with rights reserved for the employer.

The original and current mandatory subjects of bargaining, otherwise known as the scope of representation, or the scope of bargaining, state that the definitions included in Government Code Section 3543.2 are to be “limited to matters relating to wages, hours of employment, and other terms and conditions of employment.”  Terms and conditions of employment are further defined to mean health and welfare benefits, leave, transfer and reassignment policies, safety conditions, class size, evaluation procedures, organizational security, grievance procedures, certain aspects of layoffs, and causes and procedures for discipline.  Certificated employees were granted the additional rights to consult with the district over educational objectives, the content of courses and curricula, and the selection of textbooks.  Added later to the Government Code were provisions for negotiation of certificated discipline short of dismissal (including suspension of pay for up to 15 days), criteria and procedures for certificated employee layoff, and certificated compensation on a basis other than training and experience.  These provisions specified that if no agreement is reached on these items, the applicable Education Code provisions govern.[3]

While the original intent of the statute was to provide school employees with binding agreements with their employers, the quid pro quo was those agreements would be over limited and defined matters giving employers the right to manage the school district on behalf of the citizens of the community for whom the employers are held accountable through the election of local board members.  It is vital to note in the list of terms and conditions of employment that all of them are employee rights with no mention of students or educational outcomes.  It should come as no surprise that since the inception of collective bargaining in our schools unions representing employees use their resources almost exclusively to protect and expand their members’ employment rights and security arguably to the exclusion of accountability for student achievement and program outcomes.

In order to resolve disputes between the parties to negotiated agreements, the Public Employment Relations Board (PERB) was established[4].  PERB is charged with administering and enforcing EERA as well as several other provisions of educational law.

PERB’s interpretations of the act’s scope of language, some of which has been tested in the courts, have resulted in a settled rule[5]: A subject not specifically listed as negotiable will be held to be so if it (1) clearly relates to an enumerated subject; (2) is likely to cause conflict of the sort that collective bargaining is designed to overcome; and (3) negotiations over it will not unduly abridge managerial prerogatives[6] (the Anaheim Test)..

In addition, another PERB ruling interpreted Sec. 3540, which says that nothing in the act “shall deem to supersede” provisions of the Education Code.  PERB ruled that passage to mean that a contract provision can cover the same subject as the code, but cannot replace or annul a code provision that sets an “inflexible standard or insures an immutable provision.”[7]

Since the inception of PERB there have been 2200 PERB Board Decisions with many of them expanding the scope of bargaining and reducing managements’ rights to operate school districts in accordance with local community direction.  This is analogous to the often criticized practice of “legislating from the bench.”  The Anaheim Decision is a prime example of PERB, with court concurrence, overstepping its authority, or at least not using a balanced approach to making decisions. This was a violation of the original agreement that only a limited and defined list of subjects would be negotiable with all other rights retained by the employer.

As noted earlier PERB was set up to resolve disputes between the parties, but only according to the statute.  A purely constructionist body, one that rules strictly on the enacted law and its intent would have referred undefined problems back to the appropriate law-making body, the state legislature, for new or revised laws that would better guide them in being impartial in their dispute resolution process.

Even before Anaheim, PERB was making decisions that went beyond the original scope of bargaining.  The school calendar was not one of the defined terms and conditions of employment, but was ruled to be reasonably related to hours of employment.  Early challenges about the negotiability of the beginning and ending dates of certificated service for the school year, and vacation and holiday dates for certificated employees were made and ruled on by PERB. In Palos Verdes and Pleasant Valley Unified School District (1979)[8] management argued for a strict reading of the statute, while the employee organizations were interested in a broader definition that would allow more issues to be brought to the negotiating table.  Those early PERB decisions set in motion a highly competitive and adversarial relationship between management and labor. 

A closer look at these decisions is informative.  Verbatim excerpts from those decisions written by then PERB Chairperson Harry Gluck are in italics.  The non-italisized content is commentary.  Interestingly, and before PERB had very much experience, they did recognize several facts that in later years seem to have been discounted.

First, the written decision stated, “The question of ‘scope of representation’ is one of the most delicate issues that has been or will be faced by this Board.  It seems clear that educational management hopes for this Board to adhere to a very tight definition in interpreting the scope of the language of EERA, as contained in section 3543.2[9] while most employee organizations are interested in a broader definition that would allow more issues to be brought to the negotiating table.[10]  This is really the heart of the matter, and the direction PERB Decisions have followed since its inception is a reflection of the political appointments to PERB.  Recent research has not revealed the historical composition of the PERB. We do know that the Board was dominated by Democratic Appointees in its early days setting many precedents that have not been overcome by later Boards even if they wanted to do so. It is no wonder that the “broader definition” was installed early and has prevailed.

Second, the decision discusses the use of a private sector model in the public sector, and stated, “…the freedom to contract in exclusively private enterprise…does not blanket public school matters because of the governmental interest in public concerns which may be involved, however rarely that may be[11].  The discussion goes on to state, “Consequently, this Board must attempt to balance the right of public employee groups to negotiate about matters directly related to their employment with the ever difficult job of managing public agencies given the current economic and political climate[12].  An interesting side note is the concern over economic and political climate twenty-six years ago.  Some things never change.

Third, in spite of recognizing that, “On the one hand, in analyzing section 3543.2 language, it seems clear that the Legislature did not intend that this Board blithely go on its way giving an expansive interpretation to section 3543.2 for it specifically mandated that ‘all matters not specifically enumerated’ were to be excluded from the negotiations process, rendering them prohibited items of negotiations.  PERB, however, discounted the arguments for a strict interpretation of the statute by stating,  “On the other hand, while section 3543.2 appears to impose a very tight limitation on the scope of negotiations, and that the enumerated scope language is prefaced by the words ‘matters relating to,’ clearly requiring and enabling this Board to interpret the scope language with some degree of latitude[13].  This was the start of the “slippery slope” toward the Anaheim decision and the enormous expansion of the scope of bargaining far beyond the original intent of the author of the statute and the Legislature.

The final decision clearly showed the direction of PERB in terms of creating law rather than enforcing it, when it stated, “Accordingly, while the issue of work distribution may have some effect on the educational program, such effect is not so substantial as to outweigh the interest of the certificated staff in this regard.  Therefore, the dates of the beginning and ending of certificated service, vacations, and holidays are primarily related to hours of employment as found in section 3543.2, and are consequently negotiable items[14].

On can see the bias very early when the interests of the certificated staff were considered paramount.  One can only speculate that not much discussion was given to the effects on students, educational programs, and community interest.  After twenty-six years of negotiating these elements, we have considerable experience with the effects, and they have had substantial impact on educational programs, and community support.  There are examples of little or no consideration to the educational programs when establishing work days.  For instance, many holidays are scheduled in order to provide long weekends for the convenience of staff.  In other instances, Winter and Spring Vacations are scheduled in order to make travel easier for staff.  One district wanted to start school earlier in order to accommodate the testing program, but the employee organization did not agree because it interfered with summer plans. 

None of this scheduling takes into account the professional and instructional impact on the curriculum.  The curriculum, the extra-curricular activities, and indeed the entire operations of the school district are held hostage to these negotiated agreements.  It is not uncommon for elementary districts that feed into a high school district to have different beginning and ending dates as well as different holiday and vacation schedules. Ask any experienced school district negotiator, and they will report that vacation and travel plans are dominating and motivating factors in the  employee organizations’ proposals regarding calendars. 

Families with children in both districts are certainly inconvenienced with the result a lower level of community support.  Such a lower level of support can lead to the defeat of tax and bond votes needed by the districts, not to mention the encouragement and support that all teachers and staff say is critical to the success of their students.  What other business has to ask its employees and staff when it can open its doors and serve its clients rather than seriously considering the needs of the clients?

While this example is a singular one, it is by no means an exception.  One partial list of subjects not enumerated in the statute, but subsequently ruled within the scope of bargaining by PERB numbers forty-four (44).  Another list from the same source of subjects ruled outside the scope of bargaining numbers seventeen (17), 72% in favor of the unions[15] indicating, at least in the past, a strong bias toward expanding the scope of bargaining through such rulings rather than through statutes.  Besides the aforementioned calendar and holiday issues are job and duty assignments (even if they are within the duty day), job reclassification (often a management/business necessity), layoffs (with additional employee protections within the Education Code), reduction in hours of vacant positions (even though no employee is affected).

The numerous educational reforms legislated at both the state and federal levels include more rigorous student testing, higher qualifications for teachers, and mandated fiscal and program accountabilities.  The citizens of California and the indeed the nation expect their public schools to produce better graduates in both academics and job readiness.  Existing labor agreements and labor laws have not been thoroughly examined to determine their impact on student achievement and the quality of educational programs.

Alan Bersin, former Superintendent, San Diego Unified School District, and formerly Secretary of Education for California Governor Arnold Schwarzenegger was quoted as saying, “A fundamental question we have to ask about our large school systems is whether they are primarily sources of employment for adults or education for children. If we are trying to maximize productivity, the answer is clear: Our mission is to educate children. In doing this, we have to take into account the interests of the adults who work in our school systems. They are the crucial “input” in the schooling. But striking the right balance between the needs of students and the interests of teachers is among the central challenges facing public education today[16].”

One of the most comprehensive studies of the impact of bargaining on students and their educational programs was conducted by La Rae G. Munk in 1998 in Ohio.  Entitled Collective Bargaining: Bringing Education to the Table; An Analysis of 583 Michigan School Labor Contracts and Recommended Improvements to Help Teachers, Schools, and Students[17], Ms. Munk found a series of barriers to improving schools and programs.  Among them were seniority systems for assigning and compensating teachers, teacher evaluation systems that did not identify effectively poor performers, and a lack of specific management rights needed to operate the schools effectively and productively.

In California in a study produced by the Pacific Research Institute, the authors found that the impact of collective bargaining in California’s 994 school districts is enormous. Of the 460 districts examined, 337 – almost 75 percent – yield the teacher unions too much power over curriculum, professional development, the scope of academic freedom, accountability, rewards based on performance, and teacher self-governance[18].

In two of the areas identified in the Ohio Study, the California Study foundserious barriers; Transfer and Assignment, and Evaluating Teachers. Getting the right teacher with the right training in the right classroom is key to an effective school. Teacher contracts in California contain too many restrictions on principals to hire and often involve other parties (such as site committees controlled by the union). Many contracts seriously limit the pool of applicants (to internal candidates) and use seniority rather than considerations of teacher quality.[19]

Some school districts around the nation have begun to make changes to this traditional seniority system.  The Philadelphia School System in 2005-2006 has a union contract that has cracked the long-standing system of guaranteed open positions to the most veteran teachers.  Seniority has not been completely eliminated, but it has been greatly reduced in that each school principal has the option to fill half of its openings through site-based selection.  Newly configured schools need not consider seniority at all, nor must school where three-quarters of the teachers agree not to.[20]

In terms of evaluating teachers California school districts have not developed competent systems to evaluate and assist ineffective teachers and to terminate those who are unable to meet the district’s mission. This is due partly to statutory restrictions, partly to union contracts that place restrictions and barriers to effective supervision and evaluation of teachers and other employees, and in part to a culture of political intimidation directed at school administrators that “chills” both them and the process from taking aggressive actions to identify and remove incompetent employees. In 2000 the California Education Code was amended by statute to include the Peer Assistance and Review (PAR) Program.  The intent of the program was stated, “to establish a teacher peer assistance and review system as a critical feedback mechanism that allows exemplary teachers to assist veteran teachers in need of development in subject matter knowledge or teaching strategies, or both.” [21] The first priority of the system was to assist permanent teachers who received unsatisfactory evaluations until they either met district standards or were separated from employment in the district.  In 2002 School Employers Association of California conducted a survey of its member districts to determine effectiveness of the program.  The study of twenty-five (25) districts encompassing over 12,000 permanent teachers revealed that only 24 teachers had been rated unsatisfactory and referred into the program the prior year which equals .002, or 2/10^th of 1 percent.[22]  Since 2002 the California Legislature has reduced funding for the program significantly, and today the program is not effective.

The mandatory subjects of bargaining in statute have not changed since originally adopted.  As indicated earlier, terms and conditions of employment are defined, and the sixth one in the list is “evaluation procedures.”[23]  This item has been misunderstood and misinterpreted.  Regardless of the original intent of limited scope and subsequent rulings that have expanded that scope, a clear reading of the phrase would produce an unambiguous agreement that the word “procedures” is not the same as standards or criteria for evaluation.  Webster’s New Collegiate Dictionary defines “procedure” as, “a particular way of accomplishing something or of acting.”  It goes on to give a legal definition of, “a series of steps followed in a regular definite order.”[24]

Therefore, the issue is not whether procedures for evaluation such as timelines, classroom observations, supervisor/employee conferences, and certainly due process rights are negotiable.  These all fit very clearly under procedures.  The question is whether or not the standards and/or criteria for evaluating employees are negotiable.  Unions usually believe, as do some school districts, that because the standards are on the form for evaluation, and the form could be construed as part of procedures, then the standards are negotiable.   

To support this position the employee organizations believe, and many school districts have accepted an interpretation using the “Anaheim Test.”  Those adherents believe that standards and criteria are reasonably related to procedures, and therefore are negotiable.  As with other PERB decisions using the “Anaheim Test” the third prong of that test has either been ignored or discounted.  That part of the test says, “employer’s obligation to negotiate would not significantly abridge his freedom  to exercise those managerial prerogatives  (including fundamental policy) essential to achievement of the employer’s mission.”[25]  Setting standards and/or criteria for the performance of employees is certainly a fundamental policy question, and restricting or limiting an employer to bargain those standards and/or criteria for performance is a serious abridgement of managerial prerogatives.

PERB, itself, ruled that a, “School district’s unilateral adoption and implementation of rules of conduct, violation of which was grounds for discipline of severity less than discharge, was lawful since adoption of such rules was managerial prerogative and non-negotiable[26]  Obviously, the standards for performance in providing instruction  and services to students are no less a managerial prerogative than simple work rules.

A corollary, but not any less important, to holding teachers and schools accountable for delivering high quality instructional services to students is the issue of student achievement as reflected by society’s desires.  While there can be academic debate about testing, the legislature has enacted testing programs they believe represent their constituencies’ wishes to measure student and school achievements.  The current system of academic accountability in California is the Standardized Testing and Reporting (STAR) Program.  A key factor in the program is the use of the California Standards Tests (CSTs).  These tests are aligned with the adopted state academic content standards, and are recognized by the California State Department of Education as, “the official measure of progress toward meeting the standards.”[27] 

While the statutes expressly prohibit the use of publishers’ norms on standardized tests[28], the statutes do state, “The governing board of each school district shall evaluate and assess certificated employee performance as it reasonably relates to: the progress of pupils toward the standards established pursuant to subdivision (a) and, if applicable, the state adopted academic content standards as measured by state adopted criterion referenced assessments.[29]  Clearly school districts have the right to use the California Standards Tests to evaluate teachers. In fact, any contracts provisions that state otherwise might be illegal because negotiated agreements may not supercede provisions of the Education Code[30]

School Employers Association of California, a Joint Powers Authority of school and community college districts, and county offices of education, has addressed how California Statutes and the authority of the Public Employment Relations Board can be changed to remove some of the barriers to quality education caused by labor agreements.[31]  The remainder of this paper will detail a plan for making such changes.  It is time to change the focus from the employees of the schools to the schools themselves and students of California that we serve. We are confident the citizens will support changes that have a positive impact on student learning, and that citizens will translate such an effort into the financial and political support needed by our schools. 

Part 2: Solutions

The solutions to problems identified can be grouped into two major categories: 1) changes to the way PERB views its role including a willingness to question precedents in light of the number of years that have passed as well as changes in expectations of public schools; and 2) changes, or least clarifications, to the statutes that would reflect current thinking and current needs of the public schools as well as returning to the original legislative intent.

PERB will always represent the political party that was in power when the terms of the board members came up.  As indicated earlier, the predominance of appointees by Democratic Governors, especially in the early days when many questions and issues were being addressed, led to more liberal decisions favoring unions and employees.  Currently, the PERB Board is made up of Republican Governor Schwarzenegger appointees, and could reflect more of the interests of employers.  Therefore, the timing may be right to utilize a two-part strategy with PERB.  First, PERB could be asked to review several decisions that employers believe were wrongly decided because of expanding the scope of bargaining beyond what the statutes intended, and because of a misapplication of standards such as the Anaheim case.  This part of the strategy would be best served by limiting those requests.  If PERB does revisit some decisions and indeed changes several, that would set a new practice that could be utilized for other issues. 

The decision on which issues to address should be made by a coalition of management groups.  School Employers Association of California has established such a coalition with representatives from the Association of California School Administrators and California School Boards Association.  As a starting point, however, SEAC would suggest questioning the negotiability of topics such as:  holidays and starting and ending times; assignment of duties within the duty day; job reclassifications; layoffs; and reduction in hours of vacant positions. 

The Anaheim Test could be reviewed with special attention given to the third prong of the test; i.e., abridgement of management prerogatives. In reviewing this issue, PERB may be able to make different decisions obviating the need to change any laws or decisions.  For instance, when an earlier PERB determined that starting and ending dates and holidays met their interpretation of the law, they had not yet made the Anaheim Decision, but rather had said that it did not have a significant impact on the operations of the schools.  In succeeding years this issue has been a serious abridgement of management rights.  Where a number of elementary school districts feed into a high school district, school boards are often unable to coordinate starting and ending times, and holidays because each district has negotiated a different schedule.  This does significantly abridge management’s rights to coordinate instructional programs, as well as minimize student absenteeism because families cannot schedule their vacations and holidays when their children are on different schedules.  Often, parents will pull out one or the other to meet a common schedule.  Therefore, districts should be granted relief from negotiating these schedules based on a “significant abridgement of management rights.”

The current PERB has established an Advisory Committee, and held the first meeting in the fall of 2005 called by then Chair John Duncan.  Current Chair Karen Neuwald has indicated the committee will continue to meet several times a year on a regular basis.  The SEAC Executive Director attended the first meeting and is a member of the Advisory Committee.  If PERB is interested in reviewing its past decisions, or its precedents, then a first approach would be to hold discussions with members of PERB, and explore their interests in these issues.  The SEAC Executive Director has suggested to the other management associations that we hold our own discussions first, add representatives from those other management associations to the PERB Advisory Committee, and collectively determine which issues to pursue, and how to pursue them with PERB.  The “abridgement of management rights” would seem to be a fertile starting point.

In terms of statutory changes, it would seem prudent to work on a few small issues with the legislature and the administration.  One of the most promising issues would not be a change to the statutes per se, but rather a clarification.  As noted earlier in this paper, the EERA lists evaluation “procedures” as a mandatory subject of bargaining.  Also as indicated earlier, plain, simple English defines procedures as “steps leading to a conclusion.”  It does not include standards for evaluating personnel.  Therefore, it is proposed that a bill be introduced into the legislature making that provision of the Government Code very clear and discriminate, as well as reinforcing that any negotiated agreements that were related to standards of evaluation be declared null and void because of a clear conflict with the statute.

The second small issue that could be addressed through legislative action would be a bill requiring all current negotiated agreements be reviewed to determine whether or not the parties have agreed not to use the results of the California Standards Tests in the evaluation of teachers.  If so, the bill would make such agreements null and void because they are in conflict with the Education Code.

More promising would be a two-pronged strategy.  The first part could be a traditional legislative trade-off that would require finding a legislator willing to carry and work a bill or series of bills.  The second part could be an effort to use an interest-based, mutual-gain bargaining approach with the unions and management at the state level.  This would require discussions and dialogues between the parties to reveal mutually beneficial results.  The union in Denver recently agreed to a system of merit pay in exchange for significant salary increases.  In California management might be able to achieve some of the changes mentioned in this paper in exchange for improvements to salaries, benefits, and working conditions such as class size.  This approach would have to be negotiated at the state level and not by individual districts and their unions.

School Employers Association of California (SEAC), along with its partner management associations could take the lead in the use of these strategies, and in trying to achieve these collective bargaining goals.  The starting point in conversation and discussion within SEAC, branching out to the other management associations as we commit to the ideas and strategies.  Ultimately, the conversations and discussions might be extended to the employee organizations themselves, and certainly to the legislature and the administration.

The alternative is the status quo, and that never seems satisfactory while the total collective bargaining environment continues to be adversarial and stressful on all parties.  In addition, such improvements could have a positive effect on student learning as well as the work environment.  Successful negotiations on some of these issues could lead to additional changes that both employee organizations and management could embrace.  Such a change in the labor-management scene could give the public more confidence that everyone in the schools care more about students than their own welfare.  Such support could translate into greater public support both financially and politically.