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Teacher
Employment
and Collective
Bargaining Laws
in California:

Structuring School
District Discretion
j aTeacher
‘ Emajr’yment

 

William.si..i<o§ki & Aaron Tang*

Policy Brief 1 1-2

 

William S. Koski is Professor of Law and
Director of the Youth and Education
Law Project at Stanford University.

He specializes in law and educational
policy, school reform litigation, and
the representation of economically
disadvantaged children in education-
related matters.

Aaron Tang is a third-year law student
at the Stanford Law School and a
former teacher in St. Louis, Missouri.

lNSTlTUTE OF GOVERNMENTAL
STllDlES ilE‘aRARY

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UNIVERSITY OF CALlFORNlA

 

POLICY BRIEF

 

great deal of recent atten—

tion has been focused on

policies that affect the

employment relationship
between school districts and teachers.
There is broad agreement that teacher
quality is related to student achieve—
ment (Hanushek, 2003), but there is
far less agreement about the degree to
which school districts and administra-
tors are constrained in making policies
to improve teacher quality that might
also affect teacher employment and
working conditions. Conventional
wisdom holds that state law and the
collective bargaining agreements
governed by state law often hamper
districts’ discretion over teacher hir—
ing, firing, evaluation, compensation,
and assignment. Although California
collective bargaining agreements
have received some attention from
researchers (Strunk, 2010; Strunk 8r
Grissom, 2010; Strunk, 2009; Strunk 8:
Reardon, 2009; Koski & Horng, 2007)
we know far less about whether, and to
what extent, California law constrains
or facilitates district-level discretion
over teacher employment policies and
practices. This policy brief examines
that issue.

After summarizing studies consider-
ing the effects of state law on teacher
employment policies and student
outcomes, we focus on California and
examine the extent to which the legal

Executive Summary

There is broad agreement that
teacher quality is related to student
achievement, but there is far less
agreement about the degree to
which school districts and admin—
istrators are constrained in making
policies to improve teacher quality
that might also affect teacher
employment and working condi-
tions. Conventional wisdom holds
that state law and the collective
bargaining agreements governed
by state law often hamper districts’
discretion over teacher hiring, fir—
ing, evaluation, compensation, and
assignment. Although California
collective bargaining agreements
have received some attention

from researchers we know far

less about whether, and to what
extent, California law constrains or
facilitates district-level discretion
over teacher employment policies
and practices.

This policy brief examines that
issue. We focus on California and
examine the extent to which

the legal structure governing

the employment and collective
bargaining relationship between
school districts and teachers con—
strains administrative and school
board decision-making. Our strat—
egy is to classify various aspects of
the teacher—school district employ-
ment relationship into one of four

Continued on page 2.

POLICY BRIEF

 

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Executive Summary (Cont.)

categories. These categories reflect
the level of discretion that districts
enjoy over any given employment-
related condition. We then analyze
the teacher employment and
collective bargaining laws in four
other large and diverse states using
that same four-tiered analytic
framework. We conclude that
California statutory law regarding
teacher employment and collec-
tive bargaining, although quite
similar to the law in those states,

is somewhat more constraining of
administrative decision-making

in teacher employment matters.
Whether this is helpful or harm-

ful to students is entirely another
question.

structure governing the employment
and collective bargaining relationship
between school districts and teachers
constrains administrative and school
board decision—making. Our strategy
is to classify various aspects of the
teacher—school district employment
relationship into one of four catego—
ries. These categories reflect the level
of discretion that districts enjoy over
any given employment-related con-
dition. We then analyze the teacher
employment and collective bargaining
laws in four other large and diverse
states using that same four—tiered
analytic framework. We conclude that
California statutory law regarding
teacher employment and collective
bargaining, although quite similar to
the law in those states, is somewhat
more constraining of administrative

decision-making in teacher employ-
ment matters. Whether this is helpful
or harmful to students is an entirely
different question that we do not
address.

State laws that affect teacher
employment and the effects of
those laws on school district
personnel policy and decision
making.

Local school boards and school district
administrators possess significant
discretion over the establishment of
policies that affect students, teach-
ers, and the learning process. District
policies, however, are not drafted in
a vacuum. States hold plenary power
over education, and their choices to
cede authority to local districts in
varying degrees provides a frame for
districts and teachers to craft poli-
cies affecting the latter’s working and
employment conditions. Indeed,
one group of researchers argues that
“[s]tate legislators and other state-level
policymakers crafting state laws and
regulation, not those bargaining at the
local level, decide some of the most
important rules governing the teaching
profession” (Cohen, Walsh, 8r Biddle
2008, p. 1).

Whether and how states delegate their
plenary power over education and the
teaching profession varies significantly
among states. The most obvious dis-
tinction is between those states that
permit teachers to collectively bargain
with school districts over employment
terms and those that do not. Currently,
forty—five states permit and regulate
collective bargaining between teacher

collective bargaining units and dis-
tricts, while five prohibit it (Cohen,
Walsh & Biddle, 2008). Research has
not demonstrated that this distinction
has a large effect on personnel policies
and student outcomes. In some cases
this is because, in the absence of collec-
tive bargaining, the terms of the labor
arrangement are embodied in state law
rather than in local contracts (Cohen,
Walsh 8: Biddle, 2008). In others cases,
districts may voluntarily orient their
human capital policies toward mini-
mizing electoral or legal risk by estab—
lishing employment policies that are
favorable to teachers (Hodges, 2009).

Beyond the threshold of whether the
state permits teachers to collectively
bargain with school districts, state
legislatures frequently pass statutes
affecting school district discretion over
teacher employment. Among the most
common subjects of state laws and
regulations are teacher tenure, teacher
discipline and dismissal procedures,
teacher evaluation policies, and in
some states, teacher compensation
policies. Perhaps less obvious is the
role of the judiciary and other state
agencies in interpreting state laws and
thereby influencing teacher employ-
ment terms. One common example
of that influence stems from so—called
“scope of bargaining” statutes that
designate some matters as “terms
and conditions of employment” that
are subject to mandatory bargaining.
Naturally, teacher unions will try to
broaden that category, while districts
will try to narrow it. The result is often
a dispute that winds up in a courtroom
for final determination as to whether

TEACHER EMPLOYMENT AND COLLECTIVE BARGAINING LAWS IN CALIFORNIA

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the specific matter (e.g., classroom
adult-to-student ratios) is subject to
collective bargaining. In other words,
state law and regulations, and the
courts and state agencies that interpret
them, affect diverse and important
aspects of the district—teacher employ-
ment relationship and define the scope
of local collective bargaining.

Research on the influence of such
law and regulations on local teacher
employment policies and practices is
very much in its early stages1 (Cohen,
Walsh 81 Biddle, 2008; Koppich, 2009).
Researchers who have studied this
question empirically have approached
it from one of two directions: they
have either drawn inferences about the
permissiveness of state law by looking
at the variation in collectively bar—
gained school district-teacher union
contract terms within a state; or they
have analyzed the relationship between
categories of statutory provisions and
district contract terms across multiple
states. For example, researchers adopt-
ing the former approach have argued
that Massachusetts (Ballou, 2000) and
New York (Chung, 2008) have ceded
large swathes of power to local districts,
with the exception in Massachusetts,
of compensation. Researchers adopt—
ing the latter approach have gravitated
towards the National Council on
Teacher Quality’s database that has
coded state laws and the teachers’ con-
tracts of the fifty largest districts in the
country (National Council on Teacher
Quality). One study found that, tenure
laws excepted, these districts had a fair
amount of room to maneuver (Hess,
2008) but a subsequent study using

the same data set reached the opposite
conclusion (Hansen, 2009).

Both of these analytic approaches often
take statutory language, and to a lesser
extent, contractual language, at face
value in order to make apples to apples
comparisons across different states and
districts. But we should assume neither
the statutes nor the contract terms to
mean only what they say. State law is
contextual and depends for its force
on its interpretation by the courts
and administrative bodies. Moreover,
statutory language and the terms of
the contract may obscure the informal
arrangements that may make teacher
employment policy in practice quite
different from its mandated or agreed-
upon terms (Koski & Horng, 2007). In
some cases these arrangements provide
desired, informal flexibility, but they
may also have significant, negative
unintended consequences (Levin,
2003). Even where districts negotiate
flexible contract terms, they may not
utilize this flexibility due to inertia, lack
of creativity, fear of uncertainty, or fear
of the union contesting the language in
the future (Price, 2009; Strunk, 2009).

Put simply, research on the effects of
teacher employment and collective
bargaining laws is just beginning to
emerge. This policy brief builds on
that nascent conversation by describ—
ing California’s teacher employment
and collective bargaining laws and
providing an analytic framework to
understand the degree to which those
laws formally constrain school district
policy—making and employment deci-

sions.

L o 1.1.
IQ S L
U c e
A tiered analysis of California's
teacher employment/collective
bargaining laws and school dis-
trict discretion.

To determine whether and to what
extent California’s collective bargain-
ing laws have the effect of constrain-
ing school district discretion regard-
ing policy decisions, we begin with
a description of relevant California
statutes and case law and consider how
others have analyzed those laws. At
the outset, this paper makes no value
judgment as to the desirability of legal
constraints on school district discre-
tion over policies affecting teachers.
For instance, legal constraints that
require districts to enact standardized
rules and procedures for teacher com-
pensation, evaluation, and dismissal,
as opposed to ad hoc decision making,
may result in a more stable teaching
force and increased administrative
efficiency, each of which may in turn
facilitate improved student outcomes.
Conversely, such rules may offer
undue protection to a district’s lowest
performing teachers while also mak-
ing it difficult to reward outstanding
teachers, to the detriment of student
learning. Our purpose here is simply
to describe the legal framework within
which California school officials oper-
ate, and not to reach any conclusions as
to the downstream effects of this legal
framework on children.

The starting point for our description
is the statutory framework governing
teacher collective bargaining in Cali-
fornia, as that law most significantly
affects the employment relationship
between districts and teachers. To

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understand how teacher collective
bargaining laws may constrain admin-
istrative discretion, we first review
the analytic frameworks provided by
Frank Kemerer (2009) and the National
Council on Teacher Quality (NCTQ).
Kemerer’s work focuses specifically
on California’s collective bargaining
law, while the NCTQ maintains a
database comparing and contrasting
collective bargaining rules across the
fifty states.

Both Kemerer and the NCTQ analyze
state collective bargaining laws using
a three—part classification system,
although there are minor differences
between the two. Kemerer and the
NCTQ agree upon the term “manda-
tory bargaining” to describe the first
category of topics for which union
and district negotiation is required.
Kemerer uses the term “mandatory
consulting” to describe his second cat—
egory of topics, which entail a duty to
meet and confer but not to negotiate. By
contrast, the NCTQ’s second category
covers “permissive” subjects, those
which the two parties are free to discuss
if they wish but for which there is no
statutory obligation to do so. Kemerer
calls his third category “management
prerogative” topics for which a school
district has absolute discretion to act,
although it may consult with the union
ifit so chooses (Kemerer, 2009, p. 140)
while the NCTQ uses a third category
that encompasses “prohibited” topics
which may not be negotiated between
the two parties at all.

Despite their minor differences, the
primary purpose of the three-category

classification systems used by Kemerer
and the NCTQ is to assist in the
determination of whether a particular
bargaining issue must be the sub-
ject of negotiation between a school
district and union representative, as
such mandatory bargaining presum-
ably reduces the discretion available
to school districts. But neither system
offers a complete picture of how a state’s
laws may constrain school district
discretion. After all, a state-imposed
duty to negotiate represents only one
way in which district officials may be
constrained from acting, and it is not
always an absolute restraint at that: in
California a school district may, if it
follows certain procedures upon reach-
ing an impasse with the union, enact a
policy regarding a topic of “mandatory
bargaining” without express union
approval. Moreover, legal constraints
other than the duty to negotiate can
profoundly affect school district dis—
cretion. For example, statutory provi-
sions that have the effect of prohibiting
negotiation altogether over particular
subjects can either hamper school
district discretion (such as Cal. Educ.
Code § 45113’5 guarantee of particular
due process protections for permanent
teachers) or authorize absolute school
district discretion (such as § 44929.21’5
declaration that non—tenured teachers
may be terminated without cause).

Accordingly, we apply here a different
organizational structure to describe
California collective bargaining law,
one that includes four tiers of school
district discretion where each tier is
defined by the procedure that district
oflicials must follow before being able

to enact a policy without the approval
of the union representative. We use
this system because our analysis begins
from the perspective of the school dis-
trict official who wishes to implement
a school policy that impacts teachers
and who seeks to know what steps she
must take (or can take) vis-a-vis the
teachers’ union in order to implement
that policy. After all, in the absence
of California’s public sector collective
bargaining rules and specific laws in
the Education Code, the district offi—
cial would have the same discretion to
impose a unilateral change with respect
to its employee-affecting policies that
any employer would have in an at-will
employment context. In a standard
at—will relationship, teachers would be
protected only by broad public policy
considerations such as anti—discrimina—
tion rules, and the district would have
wide latitude to act freely.

But California teachers are not at—will
employees. The Educational Employ—
ment Relations Act (EERA) enacted in
1975, guarantees teachers the right to
organize collectively and negotiate over
policies affecting wages, hours, and
other terms and conditions of employ—
ment. The effect of the EERA has been
to empower teacher unions to occupy a
prominent role in the education policy
arena, where unions commonly spon—
sor legislation, influence school board
elections, negotiate contracts, and rep
resent teachers in disputes against their
employers (Strunk & Reardon, 2009;
Kemerer, 2009). Indeed, the collective
bargaining contracts negotiated by
unions constitute a “source of law that
rivals school board policy in govern-

TEACHER EMPLOYMENT AND COLLECTIVE BARGAINING LAWS IN CALIFORNIA

 

TABLE 1. Four tiers of constraint against school districts in California law.

 

 

 

  

 

 

 

 

 

 

 

Most Restrictive
Tier . Tier! . J 5 i "Tier-2 1 j (1.x;
‘ No School District Discretion . v ~ljiriitgid District‘ai'scrouon . : a ,

When district can Never Only after following After giving the union the Whenever

impose unilateral bargaining steps laid out opportunity to ”consult" on

action. in CGC§3548 re: ”impasse" the topic
‘ (mediation, fact finding,

multiple renegotiations)

7 . Any policy that would - Wages - Definition of educational . All matters not
General topics 7 violate a provision of the - Hours objectives specifically enumerated
included in this tier. Cal Ed Code (CGC§3S40) . Terms & Conditions of - Determination of course in §3543.2 (and not

- Topics described in Employment (defined in and curriculum content included in the San
CGC§3543.2(b)-(e) §3543.2) . Selection of textbooks Mateo test)
where union must agree - Matters relating to (1) — . Matters explicitly
otherwise Ed Code rule is (3) above (San Mateo test) reserved to district
default officials (such
as using data in
teacher evaluation,
CEC§10601.6)
- Discipline Procedures for . Class Size ~ Same as General Topics - Procedures
Examples of issues Certified Employees - Retirement Benefits Above for terminating
included in this tier. - Procedures for Forced - Teacher Assignment probationary employees
Reduction Due to Lack of - Teacher Prep Time . Using data in teacher
Funds evaluations
- Bonuses and Salary
Schedule Not Tied to
Training/Experience

 

 

 

ing day-to-day school administration”
(Kemerer, 2009, p. 141 ).

California case law and statutory law,
with the EERA as the principal source,2
thus create substantial teacher union
influence over school district action,
although the unions’ influence is not
uniform with respect to every policy
topic.3 The law creates four distinct
tiers of constraint, within which fall
the various topics that make up the
district—teacher employment relation-
ship. What distinguishes each tier is the
degree to which administrators may

act independent of, and unrestrained

by, the union’s preferences.

The first tier of constraint includes
topics upon which the school district
has no discretion to impose unilateral
action whatsoever. The second tier
includes topics upon which the school
district may impose unilateral action
only after following an arduous manda-
tory bargaining procedure. In this tier,
the typical outcome is that the required
bargaining process produces mutually
agreeable outcomes without unilat—

eral action being necessary, although

the resulting policies are rarely what
the districts would choose to impose
on their own. The third tier includes
topics upon which the district can act
unilaterally after the union has had the
mandatory opportunity to “consult”—a
far less restrictive burden on district
officials and an area in which districts
often set policy unilaterally. Finally, the
fourth tier includes topics upon which
the district can act entirely unchecked
by the preferences of the union. Table 1
provides a simple depiction of the four
tiers, including a summary of the topics
that fall within each tier and the steps,

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if any, that a district must take before
imposing unilateral action.

Tier 1: No School District Discretion.

There are two categories of topics for
which school district officials have
absolutely no ability to set policy. The
first category forbids any policy that,
even if enacted with union approval,
would violate a provision of the Cali-
fornia Education Code. Such poli~
cies are prohibited and thus entirely
outside the realm of administrator
discretion because of Cal. Gov. Code
§ 3540, which states “[the EERA] shall
not supersede other provisions of the
Education Code.” It is important to
note that the district may still negotiate
policies that relate to provisions of the
Education Code so long as they do not
contradict such provisions. The Califor—
nia Supreme Court declared as much
when it interpreted this code section to
“prohibit negotiations only where pro—
visions of the Education Code would
be replaced, set aside or annulled by
the language of the proposed contract
clause.” San Mateo City School District
v. Public Employment Relations Board
33 Cal. 3d 850, 864 (1983) (citations
omitted). But the restraint on school
district discretion is still relevant: the
California Fourth District Court of
Appeal struck down Fontana Unified
School District’s policy of using bind-
ing arbitration to settle a dispute with
a classified employee because such a
procedure violated the provisions of
Cal. Educ. Code § 45113.4

The second category of topics upon
which district officials are completely
constrained encompasses four policy

areas expressly identified in the EERA.
These policy areas include: procedural
protections that certificated employees
are guaranteed in district-initiated
disciplinary actions;S the layoff of cer-
tificated employees for lack of funds;6
payment of additional compensation
based upon criteria other than years of
training and years of experience;7 and
a uniform salary schedule based on
any criteria other than years of training
and years of experience.8 For these four
topics, school districts have the right to
consult and negotiate with unions,9 but
they cannot implement any policy that
the unions find disagreeable. Absent
voluntary union agreement on these
four topics, the default policy that will
apply in the district is provided by
the relevant sections of the California
Education Code. Because these statutes
offer a substantially favorable position
to unions, district officials are left with
little bargaining power and no self—
exercising authority.

Tier 2: Limited School District
Discretion.

The second tier of constraint cre—
ated under the EERA includes topics
upon which school district officials
are required to negotiate with union
representatives. This tier of constraint
reduces administrator discretion in
two principal ways. First, by giving
unions a statutory right to bargain over
certain topics, the EERA effectively
creates the expectation that the union
and district will sit at the negotiating
table as relative equals, where the nego-
tiated outcome will be the product of
mutual agreement. Second, the EERA
lays out an elaborate procedure for

resolving impasses between the dis-
trict and union in Cal. Gov. Code §§
3548 — 3548.8, which involves multiple
rounds of mediation, fact-finding and
resumed bargaining. To the extent that
following these procedures imposes
administrative costs, district officials
may choose to agree to terms it would
otherwise refuse.

However, the duty to negotiate is
not an absolute or indefinite one, a
point that the NCTQ’s database does
not make clear. Once an impasse has
been reached where the union makes
no concessions, so long as the school
district complies with the bargaining
procedures set out in the EERA, the
district can unilaterally impose the last
best offer rejected by the union. The
California Court of Appeals for the
Fifth District carved outthis zone of
discretion for district officials declar-
ing: “Once impasse is reached, the
employer may take unilateral action
to implement the last offer the union
has rejected” (Public Employment
Relations Board v. Modesto City Schools
District, 136 Cal.App.3d 881, 900-5th
Dist. 1982). The court continued, “The
employer need not implement changes
absolutely identical with its last offer
on a given issue. However, the uni—
lateral adoptions must be reasonably
comprehended within the pre—impasse
proposals” (Id).

Thus, the district does retain a limited
degree of discretion to act unilaterally
to the extent that mutual agreement
has not occurred and the parties are
entrenched in their positions. In such
situations, the district has the authority

a TEACHER EMPLOYMENT AND COLLECTIVE BARGAINING LAWS IN CALIFORNIA

 

to impose the last rejected offer even
without union approval. Of course,
resorting to such tactics may jeopar-
dize the district’s bargaining position
in future negotiations and accordingly
the policy areas included in this tier are
best considered areas for which district
oflicials’ hands are largely tied.

What topics are included in this tier of
considerable constraint, where in order
to enact a policy the school district
must first negotiate and gain approval
Cal. Gov. Code §
3543.2(a) enumerates an express list,

from the union?

which includes, “matters relating to
wages, hours of employment, and other
terms and conditions of employment.”
It further defines “terms and conditions
of employment” to include health and
welfare benefits; leave, transfer and
reassignment policies; safety conditions
of employment; class size; procedures to
be used for the evaluation of employees;
organizational security; procedures
for processing grievances; the layoff of
probationary certificated school district
employees; and alternative compensa-
tion or benefits for employees adversely
affected by pension limitations.

This list of mandatory bargaining
topics is not exhaustive, however. In
a significant decision, the California
Supreme Court held that there are top-
ics that must be subject to mandatory
bargaining procedures beyond those
listed in law. The Court approved the
three-part test developed by PERB, rul—
ing that subjects are mandatory topics
of bargaining if:

1) The subject is logically and reason-
ably related to hours, wages, or an

enumerated term and condition of
employment.

2) The subject is of such concern to
both management and employees that
conflict is likely to occur and the media—
tory influence of collective negotiations
is the appropriate means of resolving
the conflict.

3) The employer’s obligation to negoti-
ate would not significantly abridge its
freedom to exercise those managerial
prerogatives (including matters of
fundamental policy) essential to the
achievement of the district’s mission.
(San Mateo City School Dist. v. Public
Employment Relations Bd., 33 Cal.3d
850,1983).

Applying the test, the Court ordered the
San Mateo City School District to bar—
gain over instructional duty, prepara-
tion time, and the effects of unilaterally
changing the length of the instructional
day even though those subjects were
not explicitly mentioned in the EERA.
Because of this ruling, the National
Council on Teacher Quality’s database
understates the restrictiveness of Cali—
fornia’s laws as it does not account for
judicially mandated bargaining topics.

Tier 3: Strong School District
Discretion.

The third tier of constraint consists
of three topics for which the school
district must merely consult with
union representatives prior to enact—
ing a policy. The EERA describes these
subjects and the district’s obligation
to consult as follows: “In addition, the
exclusive representative of certificated
personnel has the right to consult on the
definition of educational objectives, the

determination of the content of courses
and curriculum, and the selection of
textbooks to the extent such matters
are within the discretion of the public
school employer under the law.”

The district’s ability to unilaterally
decide on educational objectives, cur-
riculum content, and textbooks is thus
only limited by the requirement that it
“consult” with union representatives.
Although the exact contours of the duty
to “consult” are not defined in the law,
California courts have indicated that the
duty should be construed in a limited
fashion. In Campbell Elementary Teach-
ers Association vs. Abbott, the Court
found that the plaintiff union could not
establish a Violation of the Winton Act,
the immediate predecessor to the EERA
which imposed a duty to “meet and
confer” on school districts that is sub-
stantially similar10 to the EERA’s duty
to “consult,” because the union did not
produce any “evidence that the district
refused to meet and confer” (Campbell
Elementary Teachers Assn. v. Abbott, 76
Cal.App.3d 796, 807, App. 1 Dist. 1978).
Accordingly, if the district’s obligation
is only to demonstrate a willingness to
meet and confer regarding one of the
EERA’s three enumerated topics in this
tier, district officials retain a great deal
of discretion over the policies they wish
to implement.

Tier 4: Absolute School District
Discretion.

The final tier of discretion consists
of subjects for which school district
officials retain absolute discretion to
act without any regard to union pref—
erences. Two categories of subjects

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fall into this tier. The first category is
a corollary to a group of subjects that
fell into Tier 1, as it includes those
topics for which negotiation would
violate an express provision of the
California Education Code. As is the
case with Tier 1, the district may still
be required to negotiate policies that
relate to provisions of the education
code but it may not be compelled to
consider union preferences regarding
policies that would contradict such
provisions. Unlike those subject areas
in Tier 1, however, the provisions in
play in Tier 4 are ones where the Cali-
fornia Education Code establishes a
default position that is favorable to
school districts and not teachers. For
instance, California recently enacted a
law in response to the federal Race to
the Top grant program that authorizes
school districts to consider student
achievement data for the purposes of
evaluating teachers.11 District oflicials
thus retain absolute discretion to do
so, since a blanket position of the union
against the use of data would violate
the statute. Similarly, the California
Court of Appeals for the 6th District
agreed that the school district could
terminate a probationary employee
without either a showing of cause or
an arbitration hearing because any
policy negotiated by the union to the
contrary would violate Cal. Educ. Code
§ 44929.21. Sunnyvale Unified School
Dist. 1/. Jacobs, 89 Cal.Rptr.3d 546 (App.
6 Dist. 2009).

The second category of subjects where
district officials retain absolute discre—
tion is a broad catch-all category that
includes all of the topics and policy

areas that do not fall under any of the
three other tiers. For these subjects, the
EERA states, “all matters not specifi-
cally enumerated are reserved to the
public school employer and may not
be a subject of meeting and negotiat-
ing, provided that nothing herein may
be construed to limit the right of the
public school employer to consult with
any employees or employee organiza-
tion on any matter outside the scope of
representation.” Thus, any topic that is
not expressly listed in the statute and
that is not incorporated through the
three-part test in San Mateo, such as a
school—wide no smoking policy,12 is one
where the district can consult with the
union if it wishes but where it has no
obligation to do so.

How do California’s collective
bargaining and laws compare
to other states?

One useful method to assess the degree
to which California’s collective bar-
gaining regime restrains school district
officials is to compare it to statutory
and case law governing public sector
collective bargaining in other states.
Accordingly, we compare California
to four other large, demographically
and geographically diverse states:
New York, Florida, Texas, and Illinois.
Using the four—tier classification sys—
tem described above as an analytical
framework, a comparison of Califor-
nia’s collective bargaining laws with the
laws in these four states reveals both
significant similarities and differences,
with the general conclusion that Cali—
fornia law is more restrictive on school
officials. Table 2 illustrates this point

by indicating whether and how each
state is more or less restrictive than
California with respect to each tier of
discretion described above.

The most immediate observation when
comparing the five states is that Texas,
unlike the other four states, explicitly
outlaws public sector collective bar-
gaining. Tex. Gov. Code § 617.002(a)
declares, “An official of the state or of
a political subdivision of the state may
not enter into a collective bargaining
contract with a labor organization
regarding wages, hours, or conditions
of employment of public employees.”
The statute furthers renders automati—
cally void any collectively bargained
contract entered into in Violation of
this pronouncement. Thus, unlike Cali-
fornia, school districts in Texas are free
to set policy without any state mandate
for teacher input or negotiation. Texas
is not alone in this position; Georgia,
South Carolina, North Carolina, and
Virginia each have similar anti—collec-
tive bargaining rules in the context of
public education. It should be noted,
however, that outside of the dictates of
law, teacher associations in many Texas
school districts hold considerable sway
over the development of personnel
policies and employment terms.

Public sector collective bargaining is
permitted in the other four states; so
the differences in statutory restrictions
among those four states are mainly
ones of degree. There are four impor—
tant statutory elements that the states
share in common. First, all four states
require districts to bargain in good
faith with union representatives over

a TEACHER EMPLOYMENT AND COLLECTIVE BARGAINING LAWS IN CALIFORNIA

 

TABLE 2. Comparing New York, Florida, Texas, and Illinois collective bargaining laws to California law:
Are these states’ laws more or less restrictive than California and how?

 

" '- Tierej v‘ "

 

 

 

 

 

 

districts are not subject
to statutory provisions
prohibiting unilateral
action regarding due
process protections.

 

Districts have similar
authority as California
districts to act unilaterally
upon impasse, but fewer
topics are subject to a
mandatory bargaining
duty than in California (see
Table 3).

 

No Tier 3 exists in these
states because statute
does not compel districts
to ”meet and confer" with
unions on any topics.

 

State . Tier 1 Tier 2 ~ “Tier 3 , ‘ ,
No Discretion Weak Discretion Strong Discretion ‘ . Absolute Discretion

New York Mixed. Less Restrictive: Less Restrictive: Mixed, But Generally Less
Less Restrictive: school Districts have similar No Tier 3 exists in these Restrictive.”
districts are not subject authority as California states because statute
to statutory provisions districts to act unilaterally does not compel districts
prohibiting unilateral upon impasse, but fewer to "meet and confer" with
action regarding due topics are subject to a unions on any topics.
process protections. mandatory bargaining
More Restrictive: New duty than in California (see
York has a Tier 1 statutory Table 3).
prohibition against district
negotiation of teacher
retirement benefits.

Florida Mixed. Less Restrictive: Less Restrictive: Mixed, But Generally Less
Less Restrictive: School Districts have similar No Tier 3 exists in these Restrictive.“
districts are not subject authority as California states because statute
to statutory provisions districts to act unilaterally does not compel districts
prohibiting unilateral upon impasse, but fewer to "meet and confer” with
action regarding due topics are subject to a unions on any topics.
process protections. mandatory bargaining
More Restrictive: duty than in California (see
Florida has a constitutional Table 3).
amendment setting
maximum class size limits
that districts cannot
negotiate around.

Texas Less Restrictive: Districts Less Restrictive: Districts Less Restrictive: Districts Less Restrictive: Districts
have absolute discretion have absolute discretion have absolute discretion have absolute discretion to
to set school policy under to set school policy under to set school policy under set school policy under state
state law without union state law without union state law without union law without union influence.
influence. influence. influence.

lllinois Less Restrictive: School Less Restrictive: Less Restrictive: Mixed, But Generally Less

Restrictive.’

 

' Districts have smilar dlSC'E‘IIOfT over educational policy decisions and other managerial prerogatives that do not impinge on employee wages, hours, and terms or conditions of employment.
State COUYS and statues occasionally reach different opinions than Iii California, typically With California imposing a higher amount of restraint on school officials. For instance New York courts
:orfer d'stricts absolute discretion over class size but California does not; Horida courts confer absolute discretion over teacher preparation time unlike California courts; and Illinois statutes
confer absolute district discretion over class size and teacher assignment whereas California districts must bargain these topics. See Table 3.

TEACHER EMPLOYMENT AND COLLECTIVE BARGAINING LAWS IN CALIFORNIA

 

POLICY BRIEF

 

 

PACE

hours, wages, and terms and conditions
of employment,13 although courts in
each state have sometimes interpreted
the scope of this duty with divergent
results (as we discuss below). Second,
each of the states authorizes district
employers to act unilaterally with
respect to issues that are not subject
to the duty to bargain collectively.14
Third, three of the states, California,
Florida, and Illinois, have statutory
provisions prohibiting districts from
negotiating, much less implement-
ing, any policy that would contravene
another state law.15 The fourth state,
New York has case law announcing the
same principle.16 Finally, each state also
has a statutory provision describing the
procedures that districts and union
representatives must take when they
reach an impasse over a bargaining
topic.17 These steps include mediation
and fact finding, and if the union does
not make any concessions after the
steps are followed, the school district
may unilaterally impose a policy con-
sistent with its last best offer.

The fact that all four states allow
district employers to impose unilat—
eral policy changes after the point
of impasse is notable in light of the
fact that some states18 restrain school
district employers by authorizing
single-party initiated binding inter—
est arbitration as a means to resolve
impasses. School districts operating
under such statutory regimes are thus
effectively deprived of the power to act
unilaterally with respect to any subject
of mandatory bargaining, because, if
they cannot reach agreement with the
union representative, the representa—

tive can respond by requesting bind-
ing arbitration.19 Of course a favorable
arbitration outcome would yield the
same result as unilateral policy action,
but faced with the rival possibility that
the arbitrator will side with the union,
a school district in a binding arbitra-
tion state is likely to concede more, and
the union to concede less, than if the
district were able to impose its last best
offer unilaterally.

Collective bargaining rules in Califor-
nia, New York, Florida, and Illinois,
do diverge, however, in certain key
respects. Table 2 demonstrates this
notion generally, while Table 3 expands
upon the divergence of collective bar-
gaining rules among states by identify-
ing the tier of discretion encompassing
a number of important policy matters.
Table 3 also points out whether these
levels of discretion are based on statu—
tory law or case law.

The first source of the differences
among the states is that California’s
statute itself includes a lengthy defini-
tion of the topics that are necessarily
encompassed by the phrase, “terms
and conditions of employment.”20 The
other three states leave the definition
of this flexible phrase up to their pub—
lic employment relations boards and
courts. The result has been compara-
tively greater school district discretion
in the three states without a statutory
definition of “terms and conditions
of employment.” For example, where
class size is a Tier 2 mandatory bargain-
ing subject in California because the
EERA expressly includes it as a “term
and condition of employment,” New

York courts have ruled class size a Tier
4 topic upon which school districts
have full managerial discretion to act.“

The binding nature and critical role of
administrative and judicial decisions
in shaping the scope of mandatory
bargaining leads to the second key
difference among the states. Where
districts and union representatives
have disagreed over whether a par-
ticular topic should be a mandatory
subject of bargaining, each state’s
public employee relations board and
courts are tasked with fashioning a
test and ruling on the matter. This they
have done with sometimes conflicting
results. In California, as described
above, the state Supreme Court agreed
with the PERB’s three-part test in San
Mateo for whether a topic is sufliciently
“related to” wages, hours, and terms
and conditions of employment to war-
rant a duty to bargain. Following this
test, the San Mateo court held that the
issue of teacher preparation time was
related enough to hours such that the
district was obligated to bargain over
it and could not impose its own uni-
lateral policy. By contrast, in Florida,
the state Public Employees Relations
Commission applied a balancing test
weighing the issue’s characteristics as
both a managerial matter and a term
and condition of employment, and
found preparation time to be a Tier 4
subject of absolute district discretion.”
New York’s highest court reached the
opposite conclusion, finding that the
number of hours of instruction that
a teacher must provide is generally a
term or condition of employment.23
The Illinois Supreme Court has yet to

TEACHER EMPLOYMENT AND COLLECTIVE BARGAINING LAWS IN CALIFORNIA

 

TABLE 3. Comparing California, New York, Florida, Texas, and Illinois collective bargaining laws:
What tier do specific policy matters fall into?

 

Policy Matter California ‘

New York Florida

.7 lliinois

‘ Texas

 

Basic Wages, Tier 2‘
Hours, and Terms
of Conditions of

Employment

Tier 23 Tier 2‘2

Tier 2‘9 Tier 4”

 

Exclusively Tier 41
Managerial

Decisions

Tier 4“ Tier 413

Tier 419 Tier 4”

 

Class Size Tier 21

Tier 45 Tier 1‘4

Tier 420 Tier 4*

 

Retirement Tier 2‘

Benefits

Tier 16 Tier 2‘5

Tier 221 Tier 4”

 

Teacher Tier 2‘

Assignment

Tier 27 Tier 4‘6

Tier 420 Tier 4”

 

Discipline Tier 1‘
Procedures,
Certified

Employees

Tier 28 Tier 217

Tier 221 Tier 4”

 

Force Reduction Tier 1 ‘
Due to Lack of

Funds

Tier 49 Tier 4‘3

Tier 222 Tier 4”

 

Bonuses and Tier] ‘
Salary Schedule
Not Tied to
Training]

Experience

Tier 2‘0 Tier 218

Tier 221 Tier 4”

 

Teacher Tier 2‘

Preparation Time

Tier 2“ Tier 420

Tier 22‘ Tier 4"

 

 

Course Content, Tier 3‘
Curriculum,
Textbook

Selection

 

 

Tier 4“ Tier 4‘3

 

 

Tier 4‘9 Tier 4 *

 

 

 

" Tier 1 = No Discretion; Tier 2 = Weak Discretion; Tier 3 = Strong
Discretion; Tier 4 : Absolute Discretion. For more details, see
Table 1 supra and discussion in Section 2.

Cal. Gov. Code § 35432.

San Mateo City School Dist. v. Public Employment Relations Bd, 33
Cal.3d 850 (1983).

NY. Civ. Serv. Law § 204.

Board ofEduc. ofCity School Dist. ofCity ofNew York v. New York
State Public Employment Relations Bd., 75 N.Y.2d 660.

West Irandequoit Teachers Ass’n v. Helsby, 3S N.Y.2d 46 (1974).
N.Y. Civ. Serv. Law § 201(4).

Board of Educ. of Greenburgh Cent. School Dist. No. 7 v. Greenburgh
Teachers Federation, Local 1788 of American Federation of Teachers,
AFL-CIO, 82 N.Y.2d 771 (1993).

TEACHER EMPLOYMENT AND COLLECTIVE BARGAINING LAWS IN CALIFORNIA

E

a

m

5

Board of Ed. of Union Free School Dist. No. 3 of Town of Huntington
v. Associated Teachers of Huntington, Inc, 30 N.Y.2d 122, (1972)

Schwab v. Bowen, 41 N.Y.2d 907 (1977).
1979 NY. Op. Comp. 79—186.

New York City School Boards Ass'n, Inc. v. Board of Ed. of City School
Dist. ofCity ofNew York, 39 N.Y.2d 111 (1976).

Fl. Stat § 447.339.

Fl. Stat § 447.209.

Fl. Const. Art. IX, § 1.

City of Tallahassee v. PERC, 410 So. 2d 487 (Fla. 1981).

Manatee Education Association v. Manatee County School Board,
7 FPER J 12017 (1980).

7 Duval Teachers United, PEA-AFT, AFL-CIO v. Duval County School

Board, 3 FPER 96 (1977).

E

3

N
o

N

St. Lucie Classroom Teachers Association/ Classified v. School District
ofSt. Lucie County, 19 FPER J 24020 (1992).

115 Ill. Comp. Stat. 5/4.
115 Ill. Comp. Stat. 5/4.5.

Specific reported cases are unavailable confirming decisions of the
Illinois Educational Labor Relations Board on these specific issue
areas.

Central City Educ. Ass’n, IEA/NEA v. Illinois Educational Labor
Relations Bd., 174 Ill.Dec. 808 (1992).

Tex. Gov. Code § 617.002(a).

POLICY BRIEF

PACE

rule on the particular issue of teacher
preparation time, but it, like Florida,
applies a balancing test to determine
whether particular topics should be
bargained as a term and condition
of employment or free from union
influence as an issue of managerial
prerogative.“

A third difference among the states,
which is reflected in the allocation of
topics in Table 3, concerns the statutory
enumeration of specific policy areas as
either Tier 1 “no discretion” topics or
Tier 4 “absolute discretion” topics. In
the former category, California’s collec-
tive bargaining statute lists four explicit
Tier 1 topics upon which school dis-
tricts have no discretion whatsoever
to act unilaterally, and upon which the
California Education Code prescribes
a pro—union default position.25 In con-
trast, the other three states do not have
express statutory provisions remov—
ing school district authority on these
topics, although New York law lists a
separate Tier 1 topic, public retirement
benefits.26 Thus, districts in the states
that do not identify particular topics as
belonging under Tier 1 can (and must)
negotiate procedural protections for
certified teachers along with bonuses
and uniform salary schedules, since
these topics are considered a part of the
“wages, hours, and terms and condi-
tions of employment” that carry a duty
to bargain. The ability to at least negoti—
ate on these topics, and impose unilat—
eral action should impasse be reached,
confers meaningful bargaining lever-
age upon school districts to influence
related policies, leverage which is lack-
ing in California. Moreover, because

of case law and statutory law in New
York27 and Florida28 respectively, school
districts actually have Tier 4 absolute
discretion over the particular issue of
force reduction in cases of financial
necessity, an important area of mana-
gerial discretion in light of present day
budgetary hardships.

Illinois’ bargaining law goes even fur-
ther, explicitly enumerating four Tier
4 topics for which school districts will
have absolute authority to act free from
union input: sub—contracting out to
third parties that might interfere with
union protected job responsibilities;
decisions to lay—off or reduce-in—force
employees; decisions to determine class
size, class staffing and assignment, class
schedules, academic calendar, hours
and places of instruction, or pupil
assessment policies; and decisions con-
cerning use and staffing of experimen-
tal or pilot programs.29 Combined with
the fact that Illinois does not have any
of the Tier 1 statutory protections for
teachers that are present in California,
this represents a dramatic difference
that leaves school officials in Illinois
with substantially greater control over
school policy.

A fourth, albeit relatively minor dif-
ference among the states, is that only
California law creates the third tier
of constraint described in the prior
section wherein unions have a right
to consult on educational topics such
as curriculum content and textbook
selection. Although districts are free
to act unilaterally on these matters in
California, they must be willing to meet
and confer with union representatives

before doing so, a measure of con-
straint that does not exist in any of the
other states, as the topics that fall under
in Tier 3 in California each come under
Tier 4, or absolute district discretion, in
New York, Florida, and Illinois.

Policy Implications and
Conclusion.

There can be no doubt that teacher
collective bargaining agreements con-
strain administrative discretion over
teacher employment practices and
certain educational policy decisions,
but those agreements are not reached
in a vacuum. As we have discussed,
state teacher employment and col-
lective bargaining laws structure the
negotiations and agreements that are
reached between school districts and
local collective bargaining units. In
California, those laws tend to constrain
administrative discretion more than in
the other large and diverse states we
analyzed. While it may be the case that
actual employment practices deviate
from the “law on the books” (witness
the influence of teachers associations
in Texas, a state in which teacher col—
lective bargaining is banned), the law
nonetheless shapes the bargaining
process. Indeed, as we have shown
above, the EERA creates incentives
for California teachers unions to argue
that certain matters ought to be con—
sidered “mandatory bargaining” topics
(Tier 2), while school district officials
maintain that those same topics should
instead be within management’s pre-
rogative (Tier 4). Accordingly, legal
rules provide the structure and back-

TEACHER EMPLOYMENT AND COLLECTIVE BARGAINING LAWS IN CALIFORNIA

 

drop against which much district-level
policy-making is conducted.

The policy implications of our conclu-
sion, that California law is relatively
restrictive of administrative decision—
making, are less clear. If the primary
goal of educational policy—making is
to improve educational outcomes for
California’s children, it is not evident
whether more or less school district
discretion over conditions and poli—
cies that affect teachers will produce
better student outcomes. Perhaps the
most that we can say, based on avail—
able evidence, is that this question can
best be answered only in the context of
specific policy decisions and whether
such decisions are better vested in the
state legislature vs. the local school
district and whether the position of
teachers unions vis-a—Vis the specific
policy is more or less aligned with
favorable educational outcomes than
that of local school boards and admin-
istrators. For instance, is the decision
to assess students more frequently for
purposes of accountability —a decision
that certainly affects the workaday lives
of teachers——better left to state legisla-
tors or local school board members?
Should that decision be subject to col-
lective bargaining? These are indeed
knotty questions that do not have clear
answers.

For that reason, we would urge caution
and a resistance to knee-jerk responses
based on preconceived notions of labor
or management. Caution among Sac-
ramento policy-makers is necessary
because California’s teacher employ-
ment and collective bargaining laws

are “geologic”30 in the sense that they
are an accretion of past policy decisions
that may or may not have been based
on sound educational policy-making
or seemingly necessary political com-
promise. Once that layer of policy
has settled, it becomes embedded in
the law’s crust and is quite difficult to
remove. Resistance to partisan politics
and labor vs. management bias is also
necessary, as the relevant question is
where the locus of decision-making
should be, in the State Capitol, the
school board room, or the collective
bargaining table. Our only suggestion
is that wherever those policy decisions
are made that they be transparent and
based on sound reasoning, and not
short-term political gain.

Endnotes

We would like to thank Matthew Pasternak for
contributing to the early conceptualization of this
policy brief and researching the existing literature
concerning teacher employment laws and teacher
collective bargaining.

I Although there is scant research on the effects of
state law on teacher employment arrangements
and policies, and even less that looks at the effect of
state teacher employment and collective bargaining
law on student outcomes, there is a substantial and
growing body of literature on the effect of unions
and collective bargaining on teacher employment
arrangements and educational outcomes. (Strunk
& Grissom, 2010; Strunk, 2010; Moe, 2009; Strunk
& Reardon, 2009; Strunk, 2009; Eberts, 2007;
Koski 8: Horng, 2007; Riley, Fusano, Munk, &
Peterson, 2007; Nelson, 2006; Levin, Mulhern &
Schunck, 2005; Levin 8: Quinn, 2003; Hoxby, 1996;
Nelson 1996). This policy brief does not consider
the content of locally negotiated collective bargain—
ing agreements, but rather analyzes the state laws
that provide the context for such bargaining.

Z The EERA also created the Public Employees
Relations Board (PERB) whose role it is to resolve
collective bargaining disputes arising out of the
EERA in the first instance. Decisions by the PERB
are appealable in most instances, however, to the
state’s appellate courts.

3 We also note that union influence is not uniform
across all districts, as local collective bargaining
agreements can vary substantially in their terms
and the degree to which they constrain district
decision-making. (Strunk & Reardon, 2009; Koski
81 Horng, 2007). This variation may well be due to
the variation in relative bargaining power of local
collective bargaining units in different districts.

4 United Steelworkers of America v. Board of Educa~
tion, 162 Cal.App.3d 823 (App 4 Dist. 1984).

5 Cal. Educ. Code § 3543.2(b).
6 Cal. Educ. Code § 3543.2(c).
7 Cal. Educ. Code § 3543.2(d).
8 Cal. Educ. Code § 3543.2(e).

9 Note that because the district has the absolute
right to consult and negotiate with unions over
these topics, Kemerer includes them as subject to
“mandatory bargaining” alongside those we dis—
cuss in Tier 2. However, there is a key distinction
between these four specifically enumerated topics
and those in Tier 2: the EERA authorizes district
officials to unilaterally impose action against the
union’s wishes in the latter instance (after reaching
a negotiation impasse) but not the former.

5

(Kemerer, 2009, p. 143. (“The Winton Act’s meet
and confer approach was carried over to EERA
in the form of mandatory topics for consulta-
tion between the union and the public school
employer.”))

Cal. Educ. Code § 10601.6.

:3

See, e.g., Eureka Teachers Association v. Eureka
City School District, PERB Order #955 (16. PERC
23168).

2.:

Cal. Gov. Code § 3543.2; N.Y. Civ. Serv. Law §
201(4); Fla. Stat. § 447.309; 115 Ill. Comp. Stat.
5/4.

'4 This is with the slight exception of California, which
requires district employers to meet and confer
with union representatives on Tier 3 issues such as
textbook selection and course curriculum.

15 Cal. Gov. Code § 3540; Fla. Stat. § 447.309(3); 115
Ill. Comp. Stat. 5/10.

‘6 Niagara WheatfieldAdm’rs Ass’n v. Niagara Wheat-
field Cent. School Dist, 44 N.Y.2d 68, 73 (1978).
(“Any provision of a collective bargaining agree—
ment which contravenes public policy, statute or
decisional law may not stand”)

‘7 Cal. Gov. Code §§ 3548 — 3548.8; N.Y. Civ. Serv.
Law § 209; Fla. Stat. § 447.403; 115 Ill. Comp. Stat
5/12.

TEACHER EMPLOYMENT AND COLLECTIVE BARGAINING LAWS IN CALIFORNIA

 

POLICY BRIEF

PACE

‘8 See, e.g., Iowa Code § 20.22(1) (“If an impasse

l9

persists after the findings of fact and recommenda-
tions are made public by the fact-finder, the parties
may continue to negotiate or, the board shall have
the power, upon request of either party, to arrange
for arbitration, which shall be binding. The request
for arbitration shall be in writing and a copy of the
request shall be served upon the other party”)

For a thorough description of role of binding
interest arbitration in resolving impasses during
contract negotiation, see Stuart 8. Mukamal, Uni-
lateral EmployerAction Under Public Sector Binding
Interest Arbitration, 7 LL. & Com. (1986); see also
Arvid Anderson and Loren A. Krause, Interest
Arbitration: the Alternative to the Strike, 56 Ford.
L. Rev. 153 (1987).

3“ Cal. Gov. Code § 3543.2(a) gives the following

definition: “Terms and conditions of employment”
mean health and welfare benefits as defined by
Section 53200, leave, transfer and reassignment
policies, safety conditions of employment, class
size, procedures to be used for the evaluation of
employees, organizational security pursuant to
Section 3546, procedures for processing griev-
ances pursuant to Sections 3548.5, 3548.6, 3548.7,
and 3548.8, the layoff of probationary certificated
school district employees, pursuant to Section
44959.5 of the Education Code, and alternative
compensation or benefits for employees adversely
affected by pension limitations pursuant to Section
22316 of the Education Code, to the extent deemed
reasonable and without violating the intent and
purposes of Section 415 of the Internal Revenue
Code.

West Irondequoit Teachers Ass’n v. Helsby, 35
N.Y.2d 46 (1974) (holding that the class size within
a public school is not a “term or condition of
employment” within the statute providing that the
terms and conditions of employment are subject
to mandatory negotiation).

‘3 St. Lucie Classroom Teachers Association/Classified

w

u
.u

no
'11

v. School District of St. Lucie County, 19 FPER 5
24020 (1992).

New York City School Boards Ass’n, Inc. v. Board
ofEd. of City School Dist. ofCity ofNew York, 39
N.Y.2d 111 (1976).

Central City Educ. Ass’n, IEA/NEA v. Illinois
Educational Labor Relations Bd., 174 Ill.Dec. 808
(1992).

See footnotes 2—5 supra and accompanying text.

N.Y. Civ. Serv. Law ,6 201(4) states, “benefits pro—
vided by or to be provided by a public retirement
system, or payments to a fund or insurer to provide
an income for retirees, or payment to retirees or
their beneficiaries. . . . shall [not] be negotiated

N
\l

N
on

N
o

w
o

pursuant to this article, and any benefits so negoti-
ated shall be void.”

Schwab v. Bowen, 41 N.Y.2d 907 (1977) (an
appointing official has the power to abolish a civil
service position when acting in good faith due to
economic reasons, and the public employer cannot
surrender the power to abolish positions through
the vehicle of a collective bargaining agreement).

Fla. Stat. § 447.209 (“It is also the right of the
public employer 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. However, the exercise of
such rights shall not preclude employees or their
representatives from raising grievances, should
decisions on the above matters have the practical
consequence of violating the terms and conditions
of any collective bargaining agreement in force or
any civil or career service regulation”).

115 Ill. Comp. Stat. 5/45.

Our thanks to an anonymous reviewer for this
clever term.

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A POLICY BRIEF

PACE

School of Education, Stanford University
520 Galvez Mall

CERAS Rm. 401

Stanford, CA 94305-3084
(650)724-2832
http://www.edpolicyinca.org

We would like to thank The James Irvine Foundation and The William and Flora Hewlett Foundation for financial support for
the publication of this policy brief. The views expressed are those of the authors, and do not necessarily reflect the views of

PACE or its funders.

 

Recent PACE Publications

 

I W. Charles Wiseley. Efiective Basic Skills Instruction: The Case
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I Douglas N. Harris. Value-Added Measures of Education
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I Jennifer L. Steele, Richard J. Murnane and John B. Willett.
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I Martin Carnoy. California’s Impending College Graduate Crisis
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I Reforming Education in California: A Guidefor Citizens and
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