Bargaining For Better Schools: An Introduction To Collective Bargaining in Illinois Public Education

BARGAINING FOR
BETTER SCHOOLS
An Introduction to Collective Bargaining in
Illinois Public Education
About the Institute
The Illinois Policy Institute is a nonpartisan research organization dedi-
cated to supporting free market principles and liberty-based public policy
initiatives for a better Illinois. As a leading voice for economic liberty
and government accountability, we engage policy makers, opinion lead-
ers, and citizens on the state and local level.
Policy changes lives, and the Illinois Policy Institute is working to

promote responsible public policy that will generate better opportunities
for all Illinois citizens. For further information about education reform,
contact Collin Hitt, our Director of Education Policy, at 217.528.8800 or
collin@illinoispolicy.org.
Chicago Office Springfield Office

Illinois Policy Institute Illinois Policy Institute
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Suite 2130 2nd Floor
Chicago, IL 60603 Springfield, IL 62704
Phone: 312-346-5700 Phone: 217-528-8800
Fax: 312-346-5755 Fax: 217-528-8808
www.illinoispolicy.org
Table of Contents
6
Introduction
8
Chapter 1:
Introduction to Collective Bargaining in the Public Sector
11
Chapter 2:
Bargaining Collectively Under Illinois State Law
23
Chapter 3:
Illinois School Boards and the Bargaining Process
27
Chapter 4:
Education Unions and the Bargaining Process
32
Chapter 5:
Individual Teachers and the Bargaining Process
36
Chapter 6:
Procedural Challenges in Public-Sector Collective Bargaining
43
Chapter 7:
Employee Salaries and Benefits
45
Chapter 8:
Substantive Challenges to School Boards
49
Afterword:
Final Thoughts for School Board Members and Taxpayers
50
Endnotes
Introduction
The most important policy adopted by any school or school district is its contract
with its teachers. Yet new and aspiring school board members in Illinois have
few accessible guides to a collective bargaining process that will determine how
teachers are hired, placed, compensated, rewarded and disciplined.
There are more than 5,500 active school members in Illinois’s 870 school districts.
Additionally, tens of thousands of men and women across Illinois aspire, and
indeed will, serve as a school board member over the next five, ten or twenty
years. This primer, hopefully, will introduce them to the important task ahead –
that of collective bargaining.
Recognizing that harmonious relationships are required between

educational employees and their employers, the General Assembly
has determined that the overall policy may best be accomplished
by (a) granting to educational employees the right to organize
and choose freely their representatives; (b) requiring educational
employers to negotiate and bargain with employee organizations
representing educational employees and to enter into written
agreements evidencing the result of such bargaining; and (c)
establishing procedures to provide for the protection of the rights
of the educational employee, the educational employer and the
public.1 - 115 Ill. Comp. Stat. 5/1 (1984).
Through the 1984 Illinois Education Labor Relations Act (IELRA), the
Illinois General Assembly enacted collective bargaining requirements between
educational employees and their employers in order to create more “harmonious”
relationships between the two. Unfortunately, the nature of collective bargaining
is adversarial and often serves to create tension between employees and their
employers, rather than promote harmony.
While attempting to provide a level playing field, the Illinois General Assembly
and subsequent judicial interpretations have altered and reformed the public
education collective bargaining process in ways that decidedly favor organized
labor. Due in large part to the collective bargaining process, Illinois public school
teachers now enjoy highly favorable benefits and competitive salaries, as well as
tenure rights unheard of to private-sector workers. Many experts have noted that
unions have maintained their advantage in the bargaining process due to their
vast resources.2
6 Bargaining for Better Schools

Taxpayers — and new or potential school board members — often lack the
training that would allow them to understand the collective bargaining process.
As a result, procedural matters obscure the larger policy concerns at stake during
contract negotiations. Understanding collective bargaining ahead of time should
help level the playing field between entrenched interests and relative newcomers
to the process.
By clarifying the collective bargaining process in general, we aim to help readers

who are hoping to impact local school district policy to feel more at ease doing
so. By extension, perhaps more citizens will decide to run for school board,
more journalists will understand the local balance of power between labor and
administration, and more taxpayers will understand exactly how many of the
biggest spending decisions are made.
The majority of the content in this primer was developed by Sonya Jones. A
lawyer by training, Ms. Jones has national research experience in collective
bargaining and organized labor. The balance of the text was adapted from the
excellent Michigan Collective Bargaining Primer, published by the Mackinac
Center for Public Policy and co-authored by Michael Jahr and Thomas
Washborne.
While this primer frequently focuses on statutes, legal negotiations and court
proceedings, none of the text should be interpreted by readers as formal legal
advice. Indeed, if this primer communicates no other message, it should be
clear that neither teachers nor administrators are likely to achieve their desire
bargaining process without eventually seeking direct, expert legal counsel during
the collective bargaining process.
Please enjoy this primer for what it is — a free and accessible introduction to the
subject of collective bargaining in Illinois public education.
Collin Hitt
Director of Education Policy
Illinois Policy Institute
Sonya Jones
Visiting Fellow
Illinois Policy Institute
The Illinois Policy Institute 7

Chapter 1:
Introduction to Collective
Bargaining in the Public Sector
In 1962, the United Federation of Teachers gained the legal right to bargain
collectively on behalf of teachers in New York City. According to policy
researchers Frederick Hess and Martin West:
The pivotal moment in those struggles came in 1960, when,

following a one-day walkout by the United Federation of
Teachers (UFT), New York City Mayor Robert Wagner allowed
teachers to vote whether to pursue formal collective bargaining.
In June 1962, after another strike, the UFT negotiated a formal
collective bargaining agreement — the nation’s first for teachers
— offering an across-the-board pay increase of nearly $1000 and
a duty-free lunch period.3
Shortly thereafter, President John F. Kennedy issued Executive Order 10988,

approving unionization of federal public employees. The order did not force
employees to join a union, but it did establish procedures like those of the
National Labor Relations Act (NLRA), allowing exclusive representation by a
union if a majority of employees voted in favor of such.4 Prior to 1983, public
employees did not have the right to collectively bargain in Illinois. At that time,
the General Assembly passed two separate pieces of legislation granting collective
bargaining rights statewide to both public education employees and other public
employees.
The Dynamics of Public-Sector Bargaining
According to a report released in January 2009 from the federal Bureau of Labor
Statistics, union membership across the nation in the private sector is 12.4
percent of wage and salaried employees.5 That represents a decline from 20.1
percent in 1983, which was the first year such data were available.6 The most
recent numbers show a slight increase in union membership over the last two
years.7 In Illinois, 17.5 percent of all workers belong to labor unions, ranking 10th
behind Hawaii, Alaska, New York, Washington, Michigan, California, New Jersey,
Nevada and Connecticut, respectively.8
Public-sector workers are now five times more likely to belong to a union than
their private-sector counterparts.9 Nationally, 36.8 percent of workers in the
public sector are unionized. By contrast, only 7.6 percent in of workers in the

private sector are unionized.10 As union numbers have declined in the private
sector, the unions have increasingly sought to unionize those in the public
sector, via state legislation, to maintain their political power. Those in education,
training and library occupations represent the highest rate of unionization at 38.7
percent.11 Of the 8,451,250 employees in that category, 5,190,640 (61.4 percent)
are instructional employees in K-12 settings.12
Linda Kaboolian of Harvard’s Kennedy School of Government points out,

“Public education has, by every measure, the highest density of membership
and coverage by collective bargaining of any industry, public or private.”13 As a
result, education unions have more power in their sector than their counterparts
representing other industries.
Private-sector unions are governed by federal law (the National Labor Relations
Act) and public-sector unions are governed by state law. In the private sector, as
Thomas W. Washborne and Michael D. Jahr of the Mackinac Center for Public
Policy have noted, “a labor union’s leverage to obtain the most favorable terms
of employment derives from its government-sanctioned ability to organize and
bargain as a group, even if some in that group object.”14 The union is permitted by
federal law to take action in furthering its position and, if necessary, to withhold
labor until its demands are met.15 Ultimately, the union’s bargaining effectiveness
is measured by the employer’s ability to survive without the organized employees.
In the private sector, a union’s strength is limited by the employer’s

competitiveness in the marketplace, its ability to attract enough qualified
replacement workers in the event of a strike, and its current financial situation.
The public sector is markedly different.
The Impact of Bargaining in Education
The public sector is limited by budgets,

“You don’t have to be a
which are funded by tax dollars. In the case
conspiracy theorist to
of school districts, each school board is
wonder whether collective
restricted to a budget based on the amount
bargaining in education hasn’t
of projected revenue that will be generated
become something more like
by designated tax dollars collected within
collusion.”
the boundaries of the district, and from
supplemental state and federal funds, if
- Frederick M. Hess, A Better
available. In reality, because schools may not
Bargain: Overhauling Teacher
simply shut their doors when they run out of
Collective Bargaining for the 21st
money, school districts have no bottom line.
Century 16
This often means that school districts must
propose levies, or additional taxes, in order to fund contracts already in place.
School board elections and recall petitions can put intense political pressure on
a board member to capitulate to union demands. In many cases, board members
owe their seats to the work of the teachers union. For example, the local teachers
union and the Illinois Education Association (IEA) often contribute to and
organize on behalf of candidates that openly support their objectives. In fact,
teachers unions are reportedly “the most active interest group in board elections;
almost 60 percent of board members nationwide say the teachers unions are
‘very active’ or ‘somewhat active’ in their local elections.”17 In doing so, the unions
reasonably expect reciprocal support at the bargaining table. Ironically, school
board members wield no similar power to affect union elections, in which only
union members vote.

Chapter 2:
Bargaining Collectively Under
Illinois State Law
Collective bargaining is the performance of the mutual
obligations of the educational employer and the representative
of the educational employees to meet at reasonable times and
confer in good faith with respect to wages, hours and other
terms and conditions of employment, and to execute a written
contract incorporating any agreement reached by such obligation,
provided such obligation does not compel either party to agree
to a proposal or require the making of a concession. - 115 Ill.
Comp. Stat. 5/10(a) (1984).
When the Illinois Education Labor Relations Act (IELRA) became law in
1984, the state of Illinois officially granted collective bargaining rights to public
education employees. While the IELRA provides the framework under which
collective bargaining is conducted, neither the IELRA nor the Illinois Education
Labor Relations Board (“the Board”) creates or forces contractual agreements.
The IELRA sets out requirements and restrictions on collective bargaining
negotiations. Many of these are intentionally ambiguous so that individual
school boards and union representatives
may carefully construct contractual
agreements to address their unique “The 199 collective bargaining
needs and situations, which vary greatly agreements for teachers on file at
across school districts. As discussed the Bureau of Labor Statistics in
below, collective bargaining is mandated January 2005 averaged 105 pages
only for wages, hours, and conditions of in length. And the topics covered
employment. In other words, not every in those pages extend far beyond
policy administered by a school board bread-and-butter questions of
must be developed through collective salary and benefits; there are
bargaining. dozens of clauses covering a
district’s ability to evaluate,
As noted, bargaining collectively in transfer, terminate, and manage the
education in Illinois is subject to the workload of teachers, all having
IELRA, and also to interpretations potentially serious effects on
of the IELRA by the state courts and the management of schools and
the Board. While not controlling, the student achievement.”
Board uses precedent generated by
both the National Labor Relations Act -Frederick M. Hess, American
and the Illinois Labor Relations Board Enterprise Institute18

(governing all other public employees) to implement the IELRA. For example,
if there is not a prior decision by the Board based on a similar fact pattern, then
the Board may look to Illinois Labor Relations Board decisions with similar fact
patterns, although not necessarily in public education settings, in order to resolve
the dispute.
Subjective Bargaining Standards: Good Faith
Some requirements for “good faith” bargaining are set forth in state law. For
instance, the Board has determined that good faith bargaining requires that
negotiations for a new contract take place for sixty days or more. State law also
contains provisions for proper notice to be given at different points during the
bargaining process — a violation of any of these would be a violation of the duty
to bargain in good faith.
Beyond statutory requirements, the subjective standard of “good faith” in

collective bargaining has evolved through judicial interpretations. In the private
sector, the determination of good faith bargaining can be answered with one
question: Did either party come to the bargaining table without any intention
of reaching a contractual agreement? Public-sector bargaining is complicated by
the fact that public employees perform services that, by their very nature, cannot
merely cease to exist without significant negative consequences for the public.
The NLRB has set out some guidelines for good-faith bargaining determinations
that are unique to public-sector bargaining dynamics:
1. Both parties should approach negotiations with an open mind and a

sincere desire to reach an agreement.
2. The extent to which good faith is demonstrated will vary from case to
case, largely dependent upon the bargaining history of the parties.
3. Frequent and/or long meetings may not be enough to satisfy the good
faith requirement.
4. It is not imperative that an agreement is reached; however, if an
agreement is reached, it must be reduced to writing at the request of
either party.
5. Neither the employer nor the union is required to agree to any
proposal or make concessions.
As long as the parties present and consider reasonable terms, they are bargaining
in good faith. Good faith bargaining does preclude unilaterally dismissing a
mandatory subject at the bargaining table; however, there is no requirement that a
party accept any terms, and “No” is a reasonable answer to any offer.

While good faith is at the heart of collective bargaining, it is not always an
easy concept to apply. Determining whether a party is acting in good faith is
complicated, as it involves the proposals made by the parties, the procedures they
followed, and the manner in which they negotiate. Thus, courts will look to the
totality of the circumstances, including previous unfair labor practice violations,
in determining whether a party has circumvented its obligation to bargain in
good faith.20
A violation of the statutory requirement to bargain in good faith does not

always occur during contract negotiations. For example, in 2005, the Oak Lawn
Community High School District 229 notified a third-year teacher already on
probation that it would not re-employ him during the 2005-06 school year.21 The
union representing the teacher requested the reasons for the non-renewal, but the
school’s principal denied that request.22 The union then filed a grievance against
the Oak Lawn District for violating its duty to bargain in good faith, based
on the assumption that the Oak Lawn District failed to follow bargained-for
evaluation procedures in reaching its non-renewal determination.23
Relying on prior decisions, the Board agreed with the union: “An employer’s duty
to bargain in good faith includes the duty to provide information to the exclusive
representative.”24 Further, the Board reasoned, “[t]he information must be directly
relevant to the union’s function as exclusive bargaining representative and must
appear to be ‘reasonably necessary’ for the performance of this function.”25 In this
case, the Board determined that the “information requested concerned terms and
conditions of employment,” a mandatory subject of collective bargaining.26
Subjects of Collective Bargaining
Under Illinois state law, collective bargaining in education must include

negotiations for traditional terms such as wages and total hours worked. Subjects
unrelated to wages and hours — such as class size, contracting out employee
services to third parties, and frequency of staff meetings — are subjects that may
be considered during negotiations. Illinois state law does not explicitly prohibit
any subject from the bargaining table. By contrast, Michigan law expressly
prohibits bargaining over subjects such as decisions concerning inter- and
intra-district open enrollment opportunities, provisions governing contracting
procedures with third parties for non-instructional services, and the use of
volunteers in providing services at public schools.27 Notably, Illinois state law
allows a loophole in its largest school district to consider just about anything
as long as a connection can be made to wages and hours, however tenuous that
connection may be.

Mandatory Subjects
Once employees have certified an exclusive bargaining representative, the IELRA

states that “Employers, however, shall be required to bargain collectively with
regard to policy matters directly affecting wages, hours and terms and conditions
of employment as well as the impact thereon upon request by employee
representatives.”28 This language not only provides for mandatory bargaining
over wages, hours, benefits and grievance procedures, but also the impact of such
decisions. For example, within the confines of a school district’s budget, wage
increases may be limited; however, if wage increases require a shift in district
funds that affect class size or distribution (which are normally permissive subjects
of bargaining), then class size and distribution could also become a mandatory
subject of bargaining.29
The fact that teacher layoffs are not a mandatory subject of bargaining raises an
interesting observation: Illinois’ collective bargaining law may actually work to
encourage teacher layoffs as the favored solution to school funding dilemmas,
as opposed to more incremental cuts to pay or benefits. It is easy to imagine
situations in which it would be far easier for a school board grappling with
budgetary pressures to simply call for layoffs than go through the arduous process
of negotiating an across-the-board reduction in teacher pay and/or benefits. From
the union’s perspective, the needs of the group might well outweigh the needs of
the few teachers being laid off, further encouraging layoffs as a favored solution in
a budgetary crisis.
There is no requirement to resolve any particular mandatory issue before another.

However, a party may violate its duty to bargain in good faith by insisting upon
the other party’s agreement on a single mandatory subject of bargaining before
agreeing to meet on any other issue.
Permissive Subjects
Those subjects of bargaining that are not considered mandatory, but are not
otherwise prohibited, are considered “permissive.” Permissive items might include
such matters as class sizes and the composition of site-based management
committees. Because they are merely permissive, the parties may not use their
stance on such issues to limit discussion on mandatory items. Moreover, neither
party may be required to agree to a disputed permissive item.
For example, permissive subjects of bargaining, as evidenced by the collective

bargaining agreement between the Rockford School District and the local
Rockford Education Association, include the following:

• The free access to and use of school equipment and facilities (funded
with taxpayer money) by the union to conduct its business, so long as
it does not interfere with the “educational process;”
• Input from union appointees in the textbook selection process;
• Mutual agreement between the Board and the union on “all forms
that directly affect the professional staff,” including, but not limited
to “transfers, leave policies, evaluations, and other personnel related
forms” (tasks traditionally reserved for management); and
• The creation of an “Instructional Council” comprised of seven
appointees of the union and three appointees of the school
superintendent (the Council will monitor the creation and removal of
all forms and set the program for one in-service day per year).30
There is no need for school boards to bargain over permissive subjects since they
are not statutorily required to do so. These subjects may be addressed in board
policies or practices. Indeed, keeping board policies out of collective bargaining
agreements is desirable, since changing an existing contract is much more
difficult than modifying a board policy.
Because the IELRA does not expressly prohibit bargaining over any subject, the
following matters must be bargained for once the demand is made, usually by the
union: hours worked per day, class preparation time, lunch periods, retirement
bonuses/incentives, workloads, types of leave, class size, evaluation procedures,
employee discipline, discharge or termination, procedure for reducing work
force, fair share (discussed below), use of facilities, seniority, notification of work
assignments, dues deductions, and transfers and reassignments.31 The Association
of Illinois School Boards warns that these subjects should be avoided, and even
suggests modifying the list to exclude certain subjects.32
The state’s largest district enjoys great latitude in bargaining. The IELRA gives
the City of Chicago School District 299 the discretion to bargain over subjects
other than wages, hours, terms and conditions of employment, if it chooses to
do so.33 Those subjects include: contracting with third parties for instructional
services normally provided by district employees (including establishing contract
schools wherein the teaching force is employed by a private entity), including the
procedures for securing such contracts; decisions to lay off or make reductions
in the number of employees; and determinations of class size, class staffing
and assignments, class schedules, academic calendar, hours and locations of
instruction or student assignment policies.34 The City of Chicago School District
299 is not unique. The average collective bargaining agreement contains “dozens
of clauses covering a district’s ability to evaluate, transfer, terminate, and

manage the workload of teachers, all having potentially serious effects on the
management of schools and student achievement.”35
Prohibited Subjects
Even though the IELRA does not explicitly prohibit bargaining over any
subject matter, it does excuse employers from bargaining over some subjects:
“Employers shall not be required [by the union] to bargain over matters of
inherent managerial policy, which shall include such areas of discretion or
policy as the functions of the employer, standards of services, its overall budget,
the organizational structure and selection of new employees and direction of
employees.”36 Practically speaking, these subjects include: supervisory duties,
hiring practices, promotion, use of emergency days, fact-finding or interest
arbitration, maintenance of standards of board policies, discrimination,
administrator evaluation, curriculum and program, textbook selection, student
discipline, evaluation criteria, grievance definition, staffing standards (including
pupil-teacher ratio), professional qualifications, in-service training, citizenship
and constitutional protections, student teachers, and committee assignments.37
The statutory list does not include every prohibited subject. For example, it
would be impermissible to include a term in a collective bargaining agreement
that bargained away a federal employment right, such as prohibitions on
discrimination contained in the federal Civil Rights Act of 1964.38
Other Contract Requirements
Contracts between employer school districts and the exclusive bargaining

representative of its employees must contain provisions covering grievance
procedures for employees in the bargaining unit, as well as providing for binding
arbitration to resolve “disputes concerning the administration or interpretation of
the agreement.”39 The contact must also contain language “prohibiting strikes for
the duration of the agreement.”40 (Strikes will be discussed further below.)
Midterm Bargaining
Even when a contract is in effect, it may become necessary to bargain when

the school district wishes to take an action that impacts a mandatory subject of
bargaining. For example, if the district wishes to alter class sizes, reduce staff, or
adjust the length of the school day — and if any of these is a result of budgeting
issues — then wages and hours may be adjusted and interim bargaining is
required. Additionally, if the school board makes a decision that will affect wages
and hours, impact bargaining is required. (Essentially, the school board would
have to bargain both for the decision and its impact.) In these situations, and

in accordance with state law, the union must be notified at least sixty days prior
to any proposed change being acted upon in order to facilitate the good faith
bargaining period required by law. Consequently, an employer may find itself
perpetually bargaining.
One way to avoid such cumbersome processes is to include a zipper clause in

any collective bargaining agreement. “A zipper clause functions as a waiver of
union bargaining rights during the term of the contract, and is an obviously
important clause for the school board to get into the contract.”41 Without it, the
school board may find itself continuously bargaining over matters that are not
themselves mandatory subjects of bargaining, but become so as a result of their
effect on mandatory subjects of bargaining. Such constant negotiations can fatally
undermine the productivity of school boards.
Mediation
Mediation is the process whereby an outside professional is brought in to help

parties determine the facts and come up with compromise solutions. It is often
helpful where strong personalities or intractable issues are thought to have
rendered further negotiations impossible without outside help.
Collective bargaining negotiations must be conducted for no less than sixty

days.42 If a contractual agreement is not reached by ninety days before the
scheduled start date of the upcoming school year, the parties are required to
notify the Illinois Educational Labor Relations Board (“the Board”) as to the
status of the negotiations.43 This initial notification simply puts the Board on
notice that there are complications arising in the negotiations. No action is taken
by the Board at this point.44
At any time during the negotiations, the parties may jointly make a written
request to the Board to provide mediators.45 The mediators must be made
available to both parties throughout negotiations. This is so they can monitor
the negotiations for any future arbitration of grievances, and also for any future
arbitration of contract disputes.46 If requested by the parties, the mediator may
also conduct hearings for fact-finding, prepare written findings of fact, and make
recommendations for dispute resolution.47 This type of mediation must “be
provided by the Board and shall be held before qualified impartial individuals.”48
Impasse
According to Illinois state law, once contract negotiations reach the forty-fifth
day before the scheduled start date of the forthcoming school year, and no

agreement has been reached, either party may declare an impasse and petition
the Board to initiate mediation.49 At the same point in negotiations, the Board
may also act independently to initiate mediation.50 The mediator should be an
impartial observer with mediation experience agreed to by the employer and the
union representing the employees. If the parties cannot agree upon a mediator,
the Board may act on its own in providing a mediator. If the parties have still not
reached an agreement by the fifteenth day prior to the first day of the upcoming
school year, the Board is obligated by state law to initiate mediation.51
The costs of any fact-finding and mediation will shared equally between the
school district and the exclusive bargaining representative.52 If either party
requests the use of services from the Federal Mediation and Conciliation Service,
the other party must either join that request or bear the additional cost of
mediation services from another source.53 The mediator acts in a limited, advisory
role and attempts to persuade the parties to move closer to an agreement on
disputed issues.
If no agreement is reached during the mediation process, one of two scenarios will
occur. In the rare case of exclusive bargaining representatives that were established
prior to the enactment of the IELRA (1983 and earlier), a fact-finding process
is the next step in resolving disputes.54 Again, this is a neutral process in which
the fact-finder(s) investigate the situation to identify all unresolved issues and
makes recommendations to the parties for resolution of the impasse. If there are
still unresolved issues remaining after the fact-finding process, or in the case of
disputes arising under exclusive bargaining representation established since 1984,
the parties may mutually request the Board to impose final, binding arbitration.55
This is a permissive alternative since state law does not require that the parties
submit to such arbitration. Alternatively, the dispute(s) in the proposed contract
remains, the current contract expires, and the employees refuse to return to work
without a new contract.
Teacher Strikes “Teacher union leaders in Illinois

and elsewhere have made it clear
Under Illinois state law, it is legal for they will not settle for ‘meet and
teachers to strike, as long as the teachers confer’ and have stood ready and
union adheres to certain procedural willing to accept the martyrdom
requirements.57 According the IELRB of jail sentences and heavy fines
Annual Report for the 2008 fiscal year, that have been imposed on public
public education employees filed thirty- sector strikers.”56
four notices to strike and participated in
nine strikes. Public school employees -Ronald Booth, Labor Relations
are prohibited from striking while under Consultant

a negotiated contract. Public school employees may strike if: the most recent
contract has expired; mediation on the pending contract has failed to yield a new
contract; at least ten days have lapsed after a notice of intent to strike58 has been
submitted to the employer, the regional superintendent or the Board; and, the
parties have not yet mutually submitted unresolved issues to binding arbitration.59
If the employer school district believes that the strike “is or has become a clear
and present danger to the health or safety of the public, the employer may
initiate” an action for relief that may include petitioning the county circuit court
for an injunction to force the employees back to work.60 The court may grant
appropriate relief, including an injunction ordering the employees back to work
and daily fines and incarceration for each striking employee in violation of the
injunction, if it determines that a clear and present danger exists.61 Even though
the penalties for striking employees are potentially severe, the threat of a strike
remains a powerful bargaining strategy during negotiations. If a court believes the
employer has engaged in an unfair labor practice (discussed below) or finds “other
evidence of lack of clean hands,” it is a defense to the action for injunctive relief.62
Unfair Labor Practices
According to state law, educational employers are prohibited from:
1. Interfering with, restraining or coercing employees in the exercise of

the rights guaranteed under [the IELRA].
2. Dominating or interfering with the formation, existence or
administration of any employee organization.
3. Discriminating with regard to hiring or tenure of employment or any
term or condition of employment in order to encourage or discourage
membership in any employee organization.
4. Discharging or otherwise discriminating against an employee because
he or she has signed or filed an affidavit, authorization card, petition or
complaint or given any information or testimony under [the IELRA].
5. Refusing to bargain collectively in good faith with an employee
representative who is the exclusive representative of employees in an
appropriate unit….
6. Refusing to reduce a collective bargaining agreement to writing and
signing such agreement.
7. Violating any of the rules and regulations promulgated by the Board
regulating the conduct of representation elections.
8. Refusing to comply with the provisions of a binding arbitration award.
9. Expending or causing the expenditure of public funds to any external
agent, individual, firm, agency, partnership or association in any
attempt to influence the outcome of representational elections….63

Employee representatives (unions) are prohibited from:
1. Restraining or coercing employees in the exercise of the rights

guaranteed under [the IELRA], provided that a labor organization or
its agents shall commit an unfair labor practice under this paragraph
in duty of fair representation cases only by intentional misconduct in
representing employees….
2. Restraining or coercing an educational employer in the selection of
his representative for the purposes of collective bargaining or the
adjustment of grievances.
3. Refusing to bargain collectively in good faith with an educational
employer, if they have been designated in accordance with the
provisions of [the IELRA] as the exclusive representative of
employees in an appropriate unit.
4. Violating any of the rules and regulations promulgated by the Board
regulating the conduct of representation elections.
5. Refusing to reduce a collective bargaining agreement to writing and
signing such agreement.
6. Refusing to comply with the provisions of a binding arbitration
award.64
From July 1, 2007 through June 30, 2008, there were a total of 141 cases filed
for unfair labor practices, 110 against employers and 31 against unions.65 Under
state law and subsequent judicial interpretations, many actions on behalf of
employers and unions can give rise to an unfair labor practice complaint. While
the following examples do not exhaust the possibilities, they certainly highlight
the more common issues prompting such complaints.
Employer Duty to Bargain in Good Faith
In addition to statutory requirements for good faith bargaining discussed earlier,

an employer’s refusal to process, or an unjustified delay in the processing of, a
grievance violates the duty to bargain in good faith.66 Also, any evidence of prior
unfair labor practices committed by the employer may be used in such cases to
show animosity or unlawful motivation in committing an unfair labor practice
(such as a failure to bargain in good faith).67
Next, the failure of an employer to provide to the union reasons for non-
renewal of a probationary teacher, who alleges improper evaluation, can result
in an unfair labor practice.68 In a case arising in the Oak Lawn School District,
when requested by the union, the Board stated that “while the employer’s only
affirmative duty under the School Code was to provide timely notice to non-final
year probationary teachers, the employer had a parallel duty arising under the Act

to bargain in good faith and provide the reasons for a non-renewal,” regardless of
whether the employer followed proper procedures in the evaluation as outlined in
the collective bargaining agreement.69
Violation of Employee Rights
To establish an unfair labor practice for violation of employee rights, the

employee must show that the conduct by the employer was intentional, not
merely negligent.70 The Board has also found a violation of an employee’s right
by the employer when an employer has threatened to contract out for work the
employee would perform in the regular course of bargained-for duties if the
employee were to strike.71
Union Duty of Fair Representation
When a union fails to file a grievance on behalf of an employee, the employee

bears the burden of proving that omission was a result of intentional misconduct,
not merely negligence.72 Even though the same employee received a verbal
death threat from the union steward, the Board determined the threat was too
remote in time to provide evidence of the union’s motivation in failing to file the
grievance.73 In order to establish a case against a union for failure to provide fair
representation, the employee must show that the union’s conduct “demonstrate[s]
fraud, deceitful action, dishonest conduct or deliberate and severely hostile and
irrational treatment.”74 This is indicative of the great deference given to the
employee-representative relationship once established, earned or not.
Timeliness
Many cases for unfair labor practices presented to the Board are dismissed
as untimely. Notably, the duty of the union and employer to bargain in good
faith attaches upon union certification as the employees’ exclusive bargaining
representative — there need not be a contract in effect between the employer and
exclusive bargaining representative. For example, if an employer cuts positions
within a bargaining unit prior to initial contract negotiations, even due to
changes in budget, it will be considered an unfair labor practice. Remember, any
managerial decisions affecting wages and hours of employees represented by
the union must be bargained for. This applies both prior to the existence of any
collective bargaining agreement, as well as while an agreement in is effect.
In the case of employee claims for violation of employee rights, or failure of the
union to provide fair representation, the claim must be filed within six months
of the first occurrence giving rise to the claim.75 In other words, the clock begins
to tick with the first instance of possible misconduct, not when the employee

first thinks prior misconduct may arise to the level of a claim. However, untimely
allegations of misconduct may be used as evidence in an unfair labor practice
proceeding to shed light on the true character of other matters occurring within
the proper time period.76
Judicial Review
Any party adversely affected by an order from the Board may appeal directly to an
Appellate Court in a judicial district in which the Board maintains an office.77 A
notice of appeal must be filed within thirty-five days of the Board’s final order.78

Chapter 3:
Illinois School Boards and the
Bargaining Process
The Role of Local School Boards
The IELRA was enacted in 1984 to “to promote orderly and constructive
relationships between all educational employees and their employers.”79 In
general, school board members are required by virtue of their positions to find
a balance between the needs of the school system’s employees and the system’s
customers, who are the students, parents, and taxpayers. However, in collective
bargaining, protecting the interests of these customers becomes paramount, as
education personnel are represented by their unions.
Robert Barkley, former executive director of the Ohio Education Association,

described the role of the school board this way: “The fundamental and legitimate
purposes of unions [are] to protect the employment interests of their members.
It is the primary function of management to represent the basic interests of the
enterprise: teaching and learning.”80
School boards must know what they want to achieve, maintain the necessary
backup materials to support their position, and compromise only when necessary,
as long as it does not harm the principle at stake or limit future action. Carrying
out this role is, of course, a bit more complex.
One of the issues that must be confronted by a board is whether to hire a

professional negotiator and/or a labor attorney. In more cases than not, this
will prove advisable. That said, this decision is, of course, a matter of discretion
based on a district’s size and circumstances, and the relationship between the
administration and staff bargaining team members. No matter who ultimately
represents the school board, the communication between the board and the
bargaining team must be open and timely, and the priorities and limitations must
be clear.
Here, it is worth reprinting Ronald Booth’s articulation of school boards’ roles

in labor relations from his useful text, Collective Bargaining and the Illinois School
Board Member:

As Policy Setter
• Develop parameters based on district goals.
• Select negotiator and procedures.
• Insist on employee relations goals and objectives in bargaining, in
contract management, and in human relations.
• Understand unionization.
As Individual Board Members

• Develop a basic understanding of bargaining.
• Distinguish labor relations from human relations.
• Don’t be co-opted or used by the union to further its goals.
• Realize that the board’s public position in labor disputes must be
unanimous.
• Protect the confidentiality of the board’s strategy.
• Don’t play mediator.
At Impasse
• Understand and expect pressures.
• Establish a unanimous position with one spokesman.
• Know the legal limitations of individual board members.
• Don’t stand alone; present a unified school board position and get
community support.81
(emphasis added)
Ultimately, the board is responsible for the final product. Board members may
find that in yielding negotiating authority to a professional negotiator or to
school administration, agendas can arise that are not board-driven, and therefore
not necessarily in the best interest of the board or the district. To give an extreme
example, a superintendent nearing retirement might be inclined to give away an
item in exchange for labor peace.
Contract terms are real, and their impact is measurable. Consequently,

professional negotiators, or negotiators gleaned from school administration, can
be important. However, blind faith in negotiators is not only unwise, it violates
the school board’s obligation to the community.
Board Strategies in Collective Bargaining
The optimal strategy for any given school board across the state of Illinois is
beyond the scope of this primer. Every situation is different, and one of the real
benefits of local control is the ability of school boards to take advantage of this

fact. However, there are some common elements that should be addressed in any
board strategy.
Be aware of the views and positions of the union that represents the school district’s
employees. Examine the materials generated by the union on the Internet, in print,
or elsewhere. Most significant positions will not be kept hidden. The education
unions work in a coordinated fashion to achieve their statewide goals. Identifying
these goals early in the process will give a school board extra time to determine
the best approach to take.
In the private sector, human resource managers will provide boards and executives
with detailed accounts of the full cost of employment. This would include the cost
of all benefits, not just the major items such as salary and health benefits. Paid
days off — including sick days, bereavement, personal days and vacation days —
all have an associated cost. Moreover, salary is not the only direct compensation
cost; others might include longevity pay and certification bonuses. There is also a
dollar value to uniforms provided to maintenance workers or custodians. School
board members should expect similar details to be presented to them so that they
can fully understand their choices and make informed decisions. Unfortunately,
far too many boards find themselves working only from aggregated values of
salaries with a proposed percentage increase.
Develop a unified and coherent board strategy. As best they can, it is necessary for
school boards to reach uniform conclusions as to what issues are critical and
what the board’s positions will be on those issues.82 If a board fails to develop a
consensus, it is likely to be divided and conquered by the union in the press or
at the negotiating table. Where conclusions cannot be reached, it is important
to arrive at internal agreements regarding the necessity of board members in the
minority on a position to refrain from publicly undermining the board during
negotiations. Likewise, it is important for any school board member not to
act as an independent broker with the education unions on contentious issues.
Finally — though it should go without saying — it is important that the majority
of the board not impose its position on the minority.
In developing a strategy, a school board will often have a few early meetings to
set parameters and then leave a negotiator or a team to reach a final agreement.
Accordingly, it is important to have these parameters set forth in writing for the
negotiator(s) so that there can be no confusion or misunderstandings.
Parameters are meant to serve as guideposts, not straitjackets. However, a school

board can find itself in a difficult position if a negotiator oversteps the boundaries
set by the board, either by accident or intentionally. In such situations, board

members must choose between an agreement they didn’t really want — and
forever keep quiet about it — or damage the credibility of the negotiators by
directing them to reopen negotiations, an undesirable approach in a process that

is often built step by step.
Plan school board communications. It is important for a school board to have

in place a clear strategy of communicating board positions to the media and,
consequently, the public.83 In that regard, the board needs to speak with one voice
in delivering its message to the general public. Accordingly, it is usually necessary
to designate a spokesperson through which the board addresses the media and
the public.
Keep in mind that appropriate internal communication can be just as important

as external communication, as it eliminates surprises. The negotiators should
provide regular summary reports to the school board on the results of negotiating
sessions as well as future strategies. It is important to see the relationship
between the school board and those charged with the actual negotiations as a
partnership. Under such a view, misunderstandings on the parameters presented
to the negotiators, especially if they were vague, can be avoided. To avoid
micromanaging, it is a wise practice to have school board members respond to
the updates only if they notice a deviation from the parameters. Otherwise, they
should reserve their comments for discussion in closed session.
Never underestimate the effectiveness of the unions. Labor unions are multi-million
dollar operations with the overarching goal of advancing the interests of their
members. While unions may, at some level, care about the education of children,
board members should remind themselves that the union representatives
engaged in negotiating are paid professionals. They understand both the law
and the specific issues at hand, and often boast extensive experience in collective
bargaining. As discussed above, unless a board member has similar expertise and
if finances permit, the board should consider hiring a professional negotiator.
IEA affiliates have access to the expertise of the National Education Association,
a massive organization of 2.8 million members that maintains, according to
Hess and West, “a network of 1,650 full-time and 200 part-time employees who
provide local affiliates guidance on matters including negotiations and grievance
resolution. And tellingly, a full 45.6 percent of all dues paid to the IEA are
designated for UniServ field services.84 The NEA touts the UniServ program as
‘a vast cadre of human resources,’ on which it spent approximately $50 million in
2001. …”85 Considering the vast resources available to unions, it is little wonder
that many school boards choose to hire a professional negotiator.

Chapter 4:
Education Unions and the
Bargaining Process
Historical Background
“We believe individuals are strengthened when they work

together for the common good. As education professionals, we
improve both our professional status and the quality of public
education when we unite and advocate collectively.” – Mission,
Vision, and Values of the National Education Association 86
“Despite the National Education Association’s claims to be

an advocate ‘for children and public education,’ we should not
expect unions at the bargaining table to be for anything but their
own interests.” – Frederick M. Hess, the American Enterprise
Institute87
The Illinois Education Association (IEA), named the Illinois State Teachers’
Association until 1936, was originally formed in 1853 “to discuss issues affecting
schools, exchange pedagogical views, and determine ways to further the cause of
education in the state.”88 The early goals of the IEA were to establish a higher
education institution (now, Illinois State University), gain full membership rights
for women teachers, and improve access to education along racial lines.89 In 1970,
control of the IEA shifted from administrators to teachers.90 The following year,
the IEA joined the ranks of the National Education Association and formed its
own Political Action Committee to lobby state legislators, influence elections,
and establish collective bargaining rights for teachers statewide.91 Success came
fifteen years later when the Illinois General Assembly enacted the IELRA,
granting collective bargaining rights to public school employees.92 The IEA is
now the largest teachers union in Illinois, representing 133,000 members across
870 school districts.93
Illinois is also home to the Illinois Federation of Teachers (IFT), an affiliate of

the national American Federation of Teachers (AFT). In fact, the IFT-affiliated
Chicago Teachers Union was issued the first local charter by the AFT when
the national organization first formed in 1916 (at that time, it was known as the
Chicago Federation of Teachers).

Statutory Authority
The IELRA recognizes unions as exclusive representatives of public school

employees through voluntary recognition by a school board or employee
elections.94 Once a union is established, it becomes the sole representative of the
employees in a particular unit. No longer can an employee work with a school
board to determine his or her own terms and conditions of employment.
In order to engage in the collective bargaining process, a “bargaining unit” must

be formed and an exclusive bargaining representative must be “certified.” First,
the Board is solely empowered to recognize “units” for collective bargaining
purposes.95 The Board must be sure that the unit contains “employees with an
identifiable community of interest and that no unit includes both professional
employees and nonprofessional employees unless a majority of employees in each
group vote for inclusion in the unit.”96 Once a unit is determined, the certification
process begins.
The certification process begins in one of two ways. First, “[a]n educational
employer shall voluntarily recognize a labor organization for collective bargaining
purposes if that organization appears to represent a majority of employees in the
unit.”97 In such cases, the employer must post a notice of its intent to recognize
the labor organization for twenty days in places reserved for employee notices.98
Once a notice has been posted for twenty days, the employer may send written
notification to the Board of its intent to recognize the labor organization and the
Board will make a final determination of certification.99 If any dispute arises as to
the majority requirement, the Board must make a final determination of majority
status.100 If during the twenty-day notice period another labor organization
petitions the Board for recognition as the same employees’ exclusive bargaining
representative, and the Board determines that at least 15 percent of the employees
in the unit are in favor of such representation, then the Board shall proceed with
the election process.101
Alternatively, a labor organization may gain recognition as the exclusive

bargaining representative by an election of the employees in the bargaining
unit.102 A petition to the Board requesting an election may be filed: (1) “by
an employee or group of employees or any labor organizations acting on their
behalf alleging and presenting evidence” that at least 30 percent of the employees
in a unit wish to be represented for collective bargaining purposes, or that at
least 30 percent of the employees believe that the labor organization currently
representing them no longer represents the majority of employees in the unit103;
or (2) “by an employer alleging that one or more labor organizations have
presented a claim to be recognized as an exclusive bargaining representative of a

majority of the employees” in a unit and the employer doubts the majority status
of any of the organizations claiming to represent the employees.104 (“Evidence”
consists of cards individually signed by employees in the unit in support of

specified representation.)
Next, if the Board determines that a question of representation exists, it will

give notice and conduct a hearing.105 If the hearing reveals that a question of
representation does indeed exist, then the Board will call for an election, which
must be conducted within ninety days of the original filing of the petition to
certify the labor organization as the exclusive bargaining representative for
the unit.106 In 2007, the Board adopted a standard first set out by the U.S.
Supreme Court, and adopted by the National Labor Relations Board (NLRB),
requiring employers to show a “good faith reasonable uncertainty of the exclusive
representative’s majority status in order to obtain an election.”107 Notably, nothing
in state law prohibits the waiver of a hearing by the parties, allowing them to
proceed directly to an election.
Elections must be conducted by secret ballot and in compliance with rules

and regulations set forth by the Board.108 An existing exclusive bargaining
representative must automatically be placed on the ballot.109 An intervening labor
organization must be placed on the ballot contingent upon a 15 percent showing
of interest by the employees in the unit.110 The Board must give at least a thirty
day notice of the time and place for an election and, if requested, shall provide
to the parties a list of names and addresses of employees eligible to vote in the
election at least fifteen days prior to the election.111 The ballot must also include
an option of “no representative.”112
The labor organization receiving a simple majority of ballots cast will be certified
as the exclusive bargaining representative for the employees in the unit.113 If
“no representative” receives a majority of votes, then no representative will be
recognized by the employer for a twelve-month period.114 If none of the choices
on the ballot receives a simple majority of votes, a runoff will be conducted for
the top two vote receivers.115 The Board must certify the results of an election
within six working days after the final tally of votes.116
In the case of previously unrepresented employees, either the school district

or newly certified exclusive bargaining representative for the employees in
that district may demand to engage in collective bargaining.117 The contract
negotiations must begin within sixty days of the original certification of the
exclusive bargaining representative.118 If an exclusive bargaining representative
already exists for employees in the school district, negotiations must begin within

sixty days of receipt of a demand to bargain by the other party.119 Once collective
bargaining negotiations begin, the negotiations must continue for at least sixty
days, unless a contract is agreed to sooner.120 Rules of bargaining agreed to by
the parties in advance of negotiations will set out specifics, such as the number
of members on each bargaining team, allowing for any observers, recording of
bargaining sessions, and recordkeeping.
Notably, a union is certified indefinitely. Unlike our political system with its
regular elections, unions do not have to face periodic re-elections. Most American
workers with union representation have never had the opportunity to vote on it,
since the union was certified before they were hired.121
In cases where employees seek to change or disestablish an existing union, the

same rules apply as to starting a union — with one exception. A decertification
election is not allowed where there is an existing, valid collective bargaining
agreement of a fixed duration. However, under the IELRA “the Board may
direct an election after the filing of a petition between January 15 and March 1
of the final year of a collective bargaining agreement.”122 Accordingly, collective
bargaining agreements in Illinois shall not exceed three years in duration.123
Union Collective Bargaining Strategies
The Michigan Association of School Boards has developed a useful three-stage

categorization of union bargaining strategy, which is quite applicable to Illinois
and elsewhere: (1) the softening-up stage, (2) the near-impasse stage, and (3) the
give-in-or-else stage.124 During each stage, unions employ increasing pressure on
the school board to achieve a labor organization’s desired ends.
In the softening-up stage, which begins before the start of formal negotiations,
unions frame the issues for their membership. Tactics include the following:
An increase in the number of grievances, letters to the union

membership indicating their wage ranking in the job market …
or even a letter requesting negotiations commence early due to
the number of ‘serious issues’ needing to be addressed.125
The object in this softening-up stage is to motivate the base of union membership
to put their trust in the union’s bargaining team. The process resembles a primary
election in the political arena, where office-seekers attempt to solidify the support
of party loyalists prior to the bruising battle of the general election campaign.

After bargaining is underway, union tactics shift into a more confrontational
mode, the near-impasse stage:
Frequently employed strategies include union news releases

indicating the board’s team is stalling, attacks on the integrity
and competence of the board’s negotiating team, rumors and
half-truths spread among union membership to leverage support
for the union’s bargaining team, direct pleas to individual board
members, phone calls to key people and groups within the
community, a mass attendance at board meetings, or the filing of
unfair labor practice charges.126
In the near-impasse stage, unions often try to increase the pressure for
concessions by enlisting the sympathies of the general public. It is largely for this
reason that a union will work to bring to public attention the disputes at issue,
and cast the school board in as poor a light as possible. If a union can bring the
public to its side, the political nature of public school management will work in
the union’s favor.
If impasse occurs, or when it has become clear that the union has not managed
to achieve the public support to push the school board to capitulate, the union
often becomes desperate and moves to the give-in-or-else stage. Here the union’s
options become somewhat limited. They may talk of a strike, but the realities of
the IELRA concerning financial penalties make an actual walkout unlikely. At
this point, a school board can expect that the intensity of the union’s activities
will increase. This increase is often the result of conducting a media campaign,
filing charges alleging an unfair labor practice, or holding demonstrations.

Chapter 5:
Individual Teachers and the Bargaining
Process
Most collective bargaining agreements, if not all, contain provisions that require
the payment of union fees as a condition of employment. This is known as a
union security clause, a contractual paragraph that requires employees either to
be members of the union and pay dues, or, if not a member, pay an “agency fee” to
the union.
A union security clause, where the school board and union have chosen to include
one, establishes what is often described as an “agency” or “union” shop. Generally,
these clauses also require the school board to agree to fire any employee who
fails to join the union and pay dues, or refuses to pay the agency fee, unless the
employee’s religious beliefs bar such participation — in which case they have to
pay a dues-equivalent fee to charity (discussed further below).
Union security clauses are not without consequence. In fact, as pointed out by
Harvard’s Caroline Hoxby:
Laws permitting agency and union shops facilitate assertive

collective bargaining because they greatly weaken the position
of teachers in a district who oppose the union. The tools an
individual teacher has to oppose the union are withholding of
financial support and withholding of political support. Union and
agency shops weaken these tools.127
It is the duty of the teachers union to represent the rights of teachers during the
collective bargaining process. However, it is undisputed that teacher unions do
far more than negotiate contracts on behalf of the teachers they represent. There
are some circumstances in which the union’s overall agenda may conflict with the
inherent beliefs of individuals they represent, presenting a dilemma for teachers
represented by the union. In those cases, certain remedies are available.
Statutory Restrictions on Individual Teachers
Compulsory Union Membership: Fair Share Payers
All employees in a bargaining unit may be represented by a union, but that does
not mean that all employees must be members of the union. The famous U.S.
Supreme Court cases Abood v. Detroit Board of Education and Chicago Teachers
Local 1 v. Hudson both confirm that the U.S. Constitution prohibits such forced
membership.128 In addition, Title VII of the Civil Rights Act of 1964 prohibits
membership that conflicts with an employee’s religious beliefs.129 However, as
noted, teachers who refuse to join the union may nevertheless still be required
to pay an agency fee to the union for representing their interests in contract
negotiations. The amount to be paid by such represented employees may not
exceed the dues charged to union members.130 The fair share fee is deducted by
the employer from the nonmember employee’s paycheck and paid to the exclusive
bargaining representative.131 In order to better protect teachers, all contracts
should include a provision either limiting the amount of fair share fees to a
portion of union dues or a clear definition of what the fair share fee shall include
and exclude.
Paycheck Protection: Political Contributions
The fair share fee determined by the union cannot contain any fees for political
contributions in support of any candidate for political office.132 Notably, Illinois
state law does not expressly exempt political contributions made to support or
defeat ballot measures from the fair share fee.133
Paycheck protection refers to the rights of employees working under union

contracts to refrain from paying any fees through payroll withholdings other than
those actually required for representation. In the private sector, these rights are
sometimes referred to as “Beck” rights for the famous 1988 Supreme Court case
that gave rise to them, Communications Workers of America v. Beck.
In Beck, the Court held that a union cannot obligate an employee to support
union activities other than “those germane to collective bargaining, contract
administration, and grievance adjustment.”134 This decision largely mirrored the
decision in Abood v. Detroit Board of Education.135
On June 14, 2007, in the unanimous opinion Davenport v. Washington Education

Association, authored by Justice Antonin Scalia, “the Court ruled that the First
Amendment allows a state to require public-sector unions collecting ‘agency-
shop’ [or fair share] fees from non-union employees to obtain permission from
the employees before using the money for political purposes. The Court’s
opinion held that ‘[...] unions have no constitutional entitlement to the fees of
nonmember-employees.’”136
Paycheck protection is an important legislative remedy designed to diminish the

power of compulsory unionism and free public-sector workers from being forced
to subsidize union political spending with which they disagree. Sixteen states
have some form of paycheck protection. The best approach is an opt-in procedure,
which requires individual union members to make a conscious decision about
their level of union political support. Some states have opt-out procedures, which
are more cumbersome but still provide some protection of individual political
rights.
Paycheck protection requires unions to seek written permission from their

workers before using their dues money for politics. Paycheck protection relies
on the Jeffersonian principle of “freedom of association,” the fundamental right
not to subsidize political activities with which people disagree, or be forced to
associate with those people or ideas that conflict with their own “internal moral
compass.” Mike Reitz, General Counsel, Evergreen Freedom Foundation
Until the state of Illinois follows suit, it is important that collective bargaining
agreements are clear in defining the scope of the fair share fee, to preclude the
collection of any monies to be used for political purposes.
Religious Liberty and Compulsory Union Membership
A contract that provides for fair share payments must also protect the right
of non-association of nonmember employees that are “based upon bona fide
religious tenets or teaching of a church or religious body of which such employees
are members.”137 Such employees may be required to pay an amount equal to their
fair share payment “to a non-religious charitable organization mutually agreed
upon by the employees affected and the exclusive representative.”138
A teacher with objections to union membership on religious grounds is free either

to join the union or withdraw membership. This is because teachers are protected
from such employment discrimination under Title VII of the federal Civil Rights
Act of 1964. Under federal labor law, a significant issue in similar withdrawals
is whether the employee is a member of a religious sect that prohibits union
membership.139
Occasionally, this standard has been raised as appropriate for Title VII
employment discrimination claims. However, it has been established that Title
VII claims may be supported by sincerely held personal religious beliefs. For
religious objectors, Title VII requires that the unions allow withdrawal at any
time (unlike the usual window for fee-payers, as discussed previously), and the
union and school cannot require as a condition of employment the payment of
fees to the union. However, Title VII only requires that the union and school
boards make a reasonable accommodation on the issue of religion.140
In that regard, the courts have found that it is a reasonable accommodation to

the needs of the religious objectors to require that if they do withdraw from a

union, an amount equivalent to their dues may be required to be given to charity.
This is to allay the union’s fear that large numbers of employees might withdraw
from the union, ostensibly on religious grounds, in an effort to save money.
However, it is important to note that the charity is rarely the teacher’s choice.
Some agreements specifically spell out the charitable arrangement; others are set
by mutual assent. Seldom — if ever — will a religious objector simply be able to
designate the charity of his or her choice.
Voluntary Union Membership
The Constitution’s guarantee of free association supports the notion that

employees should be able to band together to advance a common interest. But
this same guarantee should also allow an individual to opt out of such banding.141
Such voluntary unionism would provide additional flexibility in school
management and give a voice to those who do not share the positions taken by a
union.
Twenty-two states have passed right-to-work laws for the private sector, which
at least forbid forced unionism and/or forced agency. 142 Until Illinois joins those
states in a voluntary system, only skilled collective bargaining by school board
members will keep union power in check. Unfortunately, as it stands, unions have
the potential to use their power to the disadvantage of taxpayers and the dismay
of employees who are forced to yield to union-mandated employment.

Chapter 6:
Procedural Challenges in Public-
Sector Collective Bargaining
Collective bargaining in Illinois has given rise to numerous challenges, both
procedural and substantive. While a number of these challenges are not easily
addressed except through legislation, awareness of the issues may help a school
board member to understand better the task before them.
“Factory Model” Bargaining and Quality Education
Collective bargaining, with its roots in the industrial, mass-production sector of

the economy, operates under a “factory model” of bargaining: One size fits all. In
this system, unions focus on securing for their members contracts with uniform
benefits, working conditions, and salaries. The factory model, however, does not
work well for individual professionals in an educational setting, as it places group
needs over the needs and interests of a particular teacher.
In fact, the standard terms of a collective bargaining agreement seldom properly

address an individual teacher’s professional needs.143 For example, as previously
noted, it is forbidden to consider individual teacher salaries and terms of
employment apart from the terms the union negotiates. Such uniform treatment
results in a loss of individual freedom, motivation, and productivity, as the
teachers divert their creative energy away from the classroom and toward union-
related activities.144 Many quality teachers simply choose to leave their profession
in favor of finding greater freedom to exercise their skills and abilities elsewhere.
Another consequence of the factory model is the creation of an atmosphere

of antagonism between school districts and employee unions. Albert Shanker,
former president of the American Federation of Teachers, explained the
adversarial relationship between unions and employers this way:
“Union contracts represent some attempt to limit and curtail

the powers of management. …[T]he interest of unions, as
long as you have a factory model, is in seeing to it that salaries
are adequate and that they are not subject to some individual
administrator who can use them politically or in a discriminatory
way.”145
As noted by researchers Howard Fuller and George Mitchell:

“Former NEA president Robert Chase once worried that ‘industrial-
style, adversarial tactics’ conflicted with education reform. But he wasn’t
speaking of the heated, intemperate comments and stern rhetoric that
occasionally can be part of the process. He was referring to an almost
relentlessly negative aura in discussions between management and
union.”146
Most importantly, the industrial or factory model of collective bargaining does

not serve students. As Seattle, Washington, superintendent John Stanford noted,
“We lost our way when we became more interested in the employment of adults
than in the education of children.”147
Scholarly research shows that effective schools are born of flexibility and
individual autonomy.148 But collective bargaining in general, and the factory
model in particular, focuses primarily on group interests.
“Pattern” Contracts Do Not Meet the Needs of Individual

Districts
The nation’s two largest teachers unions, the National Education Association and
the American Federation of Teachers, encourage their affiliates, including the
IEA and IFT, to use standard or “pattern” contract language in their collective
bargaining agreements.149 These pattern agreements do not adequately meet
the unique educational needs of individual schools and districts or teachers. For
example, what may be an appropriate contract provision in an inner-city Chicago
school may not be helpful or right for a rural district in Little Egypt. Moreover,
such contracts discourage innovation and experimentation, subjecting creativity
to an inefficient, centralized bureaucracy.
Collective Bargaining Politicizes Local School Boards
School board members must swear an oath to faithfully carry out the
obligations of their offices to the best of their ability.150 However, the collective
bargaining process frequently puts them at odds with their statutory and ethical
responsibilities. Ronald Booth sums up the slings and arrows that board members
must face when combining labor relations, human relations, and politics:
[I]f unions do not get what they want at the bargaining table,
board members and superintendents can find themselves in
jeopardy. If the politics of impasse or strike doesn’t get the
superintendent fired, then sometimes it’s the loss of school spirit
that often follows the strike or the teachers’ refusal to maintain

acceptable relationships with students and parents. Even without
the rigors of bargaining, superintendents can seal their own doom
through neglect of faculty attitudes. … Today’s teachers not only
talk about their problems out of school, they organize campaigns
to unseat board members and to remove the superintendent.
That leaves school boards and superintendents on the horns of

this dilemma: How do they protect the public from the unions
without making themselves the sacrificial lambs? Some boards
have said, let’s forget the public and give the unions what
they want. Other boards have stood fast against the union’s
demands and been ousted at the next election, soon followed
to the sidelines by their superintendents. Clearly, what is called
‘collective bargaining’ in the private sector is not necessarily the
same thing in the public sector.151
Unions routinely recruit pro-union candidates to run for public office. They then
use their considerable resources to get these candidates — who often do not
reveal their union support while campaigning — elected to school boards. Once
elected, these board members give the union clout on both sides of the bargaining
table. Tracey Bailey, a former AFT member and 1993 National Teacher of the
Year, is a frequent critic of the unions and their political nature, calling them
“special interests protecting the status quo” and pillars of “a system that too often
rewards mediocrity and incompetence.”152
Mediocrity and incompetence aside, the influence of unions over some elected
board members is real. It is not uncommon for 10 percent or less of registered
voters to cast ballots in off-cycle elections. In a purely hypothetical example, this
would mean that in a district with 59,000 registered voters, fewer than 6,000
actually vote. Considering a district of this size easily has 1,000 or more school
employees, and likely another 1,500 or so registered voters that are a part of their
households, one can imagine the impact: 42 percent of the voters could have a
vested interest in ensuring pro-union board members are elected. Throw in the
fear of a recall election, and it is easy to understand the political pressures that
plague many school boards in Illinois.
Collective Bargaining Hinders School Management Decision

Making
The agreements that arise from collective bargaining establish the respective
rights of school management and the employee union. Usually, the more

language included in an agreement, the more restricted the school board and
administrators are in making decisions.
Too many school boards have agreed to include in collective bargaining

agreements subjects that hamper their ability to make timely and crucial
decisions that affect the delivery of educational services. The end result is that
administrators and teachers alike become hamstrung by a rigid and cumbersome
set of work rules and procedures.
Illinois law only mandates bargaining “wages, hours and other conditions of
employment and resolution of disputes arising under collective bargaining
agreements.”153 But the collective bargaining process itself seems to invite the
creation of a whole host of work rules.
Frederick Hess and Martin West aptly describe the result of collective
bargaining:
“The contracts are long, complicated, and replete with both

tediously detailed and needlessly ambiguous restrictions on
administrators. The 199 collective bargaining agreements for
teachers on file at the Bureau of Labor Statistics in January
2005 averaged 105 pages in length. And the topics covered
in those pages extend far beyond bread-and-butter questions
of salary and benefits; there are dozens of clauses covering a
district’s ability to evaluate, transfer, terminate and manage the
workload of teachers, all having potentially serious effects on the
management of schools and student achievement.”154
Besides being cumbersome, these complex requirements have also led to an

ineffective and time-consuming accountability process for many districts. The
burdensome contractual requirements for the evaluation, discipline, and discharge
of employees have frequently led administrators and school boards to determine
that the cost of maintaining high standards of employee professionalism is
too high. As a result, ineffectual or even incompetent teachers are left in the
classroom, to the great detriment of students.
When school boards transfer too much decision-making power into the
collective bargaining agreements, they may very well remove the accountability
that was the goal of bargaining the provision in the first place. This is a tragedy.
Toward the end of his life, Albert Shanker recognized that accountability is
essential to providing quality education:

“The key is that unless there is accountability, we will never get
the right system. As long as there are no consequences if kids
or adults don’t perform, as long as the discussion is not about
education and student outcomes, then we’re playing a game as to
who has the power.”155
The same holds true today.
Collective Bargaining and Open Communication
The adversarial and political nature of the collective bargaining process frequently
distorts or stifles communication among key groups in a school district. School
board members and administrators, fearful of being charged by the union with
unfair labor practices, are often wary of speaking openly and directly with
teachers. Taxpayers and members of the community are frequently unaware of, or
misinformed about, what is negotiated between their elected school boards and
the unions.
For example, unions (and sometimes district negotiators) often make a concerted
effort to communicate only the general employee salary increases and not the
total bargained increase in compensation. Consequently, Illinois citizens tend
to lack a clear understanding of the true labor costs for their districts, which
typically range between 75 and 85 percent of a school district’s budget.156
Moreover, great care must be taken when informing the public or the union will
file an unfair labor practice charge, as was the case in 2006, when the school board
of the Leslie School District sent a newsletter to citizens explaining the district’s
financial status,.157
Poor communication has led analysts to argue that collective bargaining has
resulted in too much of the public interest being given away or ignored.158 Along
those lines, researchers Howard Fuller and George Mitchell have proposed that
bargaining be made public:
“We believe bargaining sessions should be public. The specifics of

union contracts are one of the least reported, yet most important,
aspects of American education. With the general public largely
shut out, the result is the uneven playing field. … In Wisconsin,
legislation would be required to achieve transparency; currently, if
one party requests that the negotiations be private, that prevails.
We propose altering those terms so that either party can stipulate
that the negotiations be public.”159

The same is true in Illinois. More public and parental involvement in the
bargaining process is key to ensuring that schools continue to deliver high-
quality education. But while the state of Illinois does permit bargaining to take
place publicly, few districts open their negotiations to the entire community.
Yet there is hope. Many other states are now requiring collective bargaining to be
done in public. William Keane notes that:
“The public may tolerate being left out of the process when things
are working smoothly. When trouble results, they will be heard. So-
called sunshine laws in Florida and other locations, which require that
collective bargaining be carried out in public, are on the books because
the public interest can be ignored only so long.”160
Collective Bargaining Fosters Numerous Conflicting Agendas
The collective bargaining process involves more than just the interests of school
board members and teachers. Many special interests are often represented at the
table, each with its own agenda. The goals of these various interests are seldom
the same.
The agendas on the union side, for example, may include those of the national
union (NEA, AFT, etc.), the state union affiliate (IEA, IFT, etc.), the local union
representative, the local bargaining unit, and the bargaining team. The school
district, on the other hand, has to consider the agenda of the school board, the
superintendent, and the administration — not to mention the needs of the
students.
The presence of so many conflicting and competing agendas often leads to

miscommunication and miscalculation. For example, some school boards hold
the superintendent responsible for negotiations, but his or her objectives may not
match the board’s and. As a result, he or she may attempt to “buy” labor peace
by agreeing to a contract which may not be in the best long-term interest of
the public or the students. Sometimes the superintendent and union negotiator
exceed their authority during negotiations or give too little time for the board to
properly review the terms they have negotiated. These are common ways a school
board can find itself saddled with a contract it did not necessarily agree to or
want.
Teachers can likewise find themselves at odds with their own unions. Teachers in
some districts have attempted to alleviate these problems by separating from their
state and national affiliate parent unions in favor of bargaining for themselves.

These locally organized teachers unions have determined that collective
bargaining can fail when there is an imbalance of power at the negotiating table
because one side (the union) is professionally trained, while the other (the school
board) is composed of community lay people.

Chapter 7:
Employee Salaries and Benefits
One of the great challenges school boards face in contract negotiations is how
to meet employee demands for increased salaries and benefits. Compensation
in public education is viewed only relative to other schools, rather than in the
context of the community at large. In other words, educators seem to live in
their own economic world, where community, state, and world events are seen as
irrelevant. Helping educators to understand they do not live in isolation, and that
public backlash is entirely possible if the evolution of salary and benefits do not
mirror the community’s, is a noble and necessary function of a board.
Complicating the challenge of meeting employee and community expectations

is the actual relationship between salaries and benefits, both substantively and
strategically. Former teacher and union leader Myron Lieberman has noted that
unions encourage increases in benefits over salary increases so that “the salary
schedule doesn’t look as high, which helps unions maintain public support.”161
Some union leaders contend that they have already taken salary concessions in
order to sustain their benefits.162 Likewise, the argument is sometimes set forth
that teachers simply aren’t getting paid enough salary — giving voters the sense
that schools are somehow underfunded.163 In any event, when benefits are raised
to compensate for perceived lower salaries, teachers are then informed about the
success of the union in obtaining a terrific deal on their behalf.164
In reality, Illinois teachers appear to be well-paid in comparison to their peers

nationwide. The “Survey and Analysis of Teacher Salary Trends 2004,” released
by the AFT, showed that Illinois educators were paid an average of $53,820 in
2004, placing them behind teachers in Connecticut, California, Rhode Island,
New York and Michigan as the best compensated in America.165 The AFT study
ranked Illinois seventh overall (at $35,114) in average starting teacher pay.
A study released by the NEA in 2008 showed that “Twenty-six states and the
District of Columbia saw real declines in average teacher salaries over those years,
adjusting for inflation.”166 Meanwhile, those same numbers reveal that Illinois
teachers ranked fourteenth overall with an actual increase in salary of 3.8 percent,
adjusted for inflation, over the ten-year period. Finally, the average teacher salary
nationwide for the 2007-08 academic year was $52,308, while Illinois ranked
fifth in the nation with an average teacher salary of $60,474.167
Salaries and benefits are by far the largest expenditure in every school district.
Health insurance is typically the second-largest item, just behind salaries and
wages.168 Nationally, a 2004 Bureau of Labor Statistics survey indicated that

the fringe benefits cost per teacher amounted to 20.2 percent of total salary, in
contrast to 17.0 percent in the private sector.169 With health care costs rising
while school district revenue projections remain flat, there are few easy solutions.

Chapter 8:
Substantive Challenges to
School Boards
There are a number of substantive challenges that school board members are
likely to encounter while negotiating a collective bargaining agreement.
“Just Cause” Discipline and Discharge
With some exceptions, government employees have a constitutionally protected

interest in their continued employment that is subject to the due process clause
of the Fourteenth Amendment, which provides that no state may take a person’s
life, liberty, or property without due process of law.170 The protection in the
present circumstance arises from a “property interest” that many government
employees, such as tenured teachers, have been deemed by the courts to have in
their employment. Accordingly, and unlike in the private sector, these employees
may not be disciplined or discharged without cause, for to do so would be to
violate the employee’s right to due process.
In due process analysis, “just cause” refers to contractually established standards

of conduct that an employee must breach before he or she can be disciplined
or discharged. Many school boards seem not to understand the implications
of the just cause standard, as evidenced by the number of contracts that extend
this standard to all employees in the bargaining unit — including probationary
teachers still being evaluated for competence. After all, it sounds reasonable that
no employee should be disciplined or discharged unless there was both justice
and cause. However, the legal standard is not that simple.
The just cause standard and the resulting due process proceeding for employee
discipline or discharge is a burdensome and time-consuming process for districts
that wish to remove ineffective, unproductive, or even criminal teachers from the
classroom. Under this standard, a school board can face increased and unplanned
expenses in processing employee discipline and discharge matters, including
substantial liability for teacher reinstatement or back pay in the event of an
unfavorable arbitration or tenure ruling.
Compounding the problem of discipline and discharge is the legal obligation

of unions to represent their members. As explained by Linda Kaboolian, faculty
chair of the Public Sector Labor-Management Program at Harvard University:

In the evolution of labor relations law, the trade-off for the right
to exclusive representation was the Duty to Fair Representation
(DFR), a demand made by forces mostly hostile to unions to
ensure that the unions treated their members fairly. When it was
established, DFR was seen as strengthening democracy within
unions; today, it is a legal obligation that seems, in the case of
teachers unions, to hamper the rights of children.
Every teacher union officer will tell you that 5-8 percent of
the members consume 90 percent of their time and the union’s
resources. The majority of these are people they would rather not
defend.171
To improve the situation, it should first be noted that school boards are legally
obligated to provide just cause only to tenured teachers. School boards would
therefore gain more flexibility by limiting the just cause standard to include
only tenured teachers and providing a less rigid standard for probationary
teachers. In addition, the probationary status in the contract should not lessen
the probationary period to below what is required by Illinois law, currently four
years. 172 By avoiding just cause proceedings where they are not constitutionally
required, elected school boards can manage their districts more effectively.
Another improvement may be adding peers to the review process. According to

Kaboolian, “Teacher unions in some districts (Toledo, Ohio) have bargained a
Peer Assistance and Review Program, which, over 25 years, has allowed for the
firing of many tenured teachers without long waits and legal costs.”173
Teacher Evaluations
Unions often demand uniformity in the teacher evaluation process — a cookie-

cutter approach that ignores the differences in goals, objectives, standards, and
style between elementary and secondary teaching. This limits management
options, and boards should avoid the practice.
Collective bargaining agreements in Illinois, with few exceptions, place more

restrictions on school administrators’ rights to evaluate their teachers than do any
statutory requirements. For example, the way a school conducts an evaluation
today may affect how that evaluation can be used in future decision making. If an
evaluator fails immediately to identify and address a teacher’s known problems
or deficiencies during the course of an evaluation, then that evaluator may be
prevented by contract from mentioning these problems or deficiencies during
future evaluations or discipline proceedings.

The Illinois School Code allows for the dismissal of a tenured teacher for
“incompetency, cruelty, negligence, immorality or other sufficient cause” who
also fails to satisfactorily complete a one-year remediation plan.174 Additionally,
the Code allows for dismissal of tenured teachers who are not qualified to teach
or if the “interests of the schools require it.”175 The determinative evaluation
process must include “consideration of the teacher’s attendance, planning, and
instructional methods, classroom management, where relevant, and competency
in the subject matter taught, where relevant.”176
School boards should be careful to ensure that additional factors not mandated by
an agreement do not erode their management prerogative. For example, school
boards should remove from their collective bargaining agreements any language
that provides for grievances over the content of a teacher evaluation. The content
of teacher evaluations should be left to the discretion of school administrators,
not to arbitrators in lengthy and expensive grievance proceedings.
Making evaluation content a matter over which grievances can be filed has
negative consequences. School boards wind up placing the judgment of
arbitrators, who do not work with or see the teachers being evaluated, above
the judgment of school administrators. It is the responsibility of school
administrators to observe and evaluate the teachers’ abilities, with a view to the
achievement and well-being of students.
Seniority-Based Salary Schedules
Good management also calls for flexibility when it comes to pay. A lack of
flexibility limits the incentives management can offer to effect change.
Most public school teachers in Illinois are paid according to a seniority-based

salary schedule, which awards compensation according to a teacher’s years of
experience and level of education.177 The same is true nationally.178 This stands in
contrast to most other areas of commerce and industry, where employees working
under a “merit-based” schedule receive compensation that is commensurate with
their job performance and productivity. It also stands in contrast to a nationwide
trend. According to the New York Times, Arizona, Florida, Iowa, New Mexico,
and North Carolina currently have programs that reward teachers for classroom
performance.179 It was also recently reported that a new Washington, D.C.,
teachers’ contract would provide a bonus program based on increases in student
performance.180

A procedural flaw in many seniority-based step salary programs is that growth
is artificially accelerated early on in a teacher’s career, with a sudden stop at the
top of the pay scale. Perhaps more importantly, only 5.5 percent of conventional
public school districts use any kind of incentives, such as cash bonuses or
salary increases, to reward excellent teaching.181 Indeed, some researchers have
concluded that the failure to reward teacher ability is primarily responsible for the
decline in the aptitude of women entering the teaching profession.182
Despite the lack of flexibility in teacher compensation based on seniority, many

union officials maintain that the fairest system is the seniority schedules that
punish the very teachers they represent. One contract provision even bluntly
stated, “Under no condition shall a teacher be compensated above his/her
appropriate step on the salary schedule.”183 A union leader in Massachusetts
stated that merit pay is “inequitable, divisive, and ineffective.”184 Such
contract language can serve only to dampen teacher motivation, initiative, and
performance, and it leaves students on the losing end.
To protect their management prerogative, school boards should remove seniority-

based salary schedules from their collective bargaining agreements. In their
place, the school board can institute performance-based pay scales that reward
outstanding teachers, encourage innovation, and attract the best people for the
important job of educating tomorrow’s leaders.
In 1993, AFT president Albert Shanker himself proposed performance-based

pay, acknowledging that such a system could be developed without being anti-
union and its flaws “would be very small compared to what we have now or
compared to what you would have without such a system.”185

Afterword:
Final Thoughts for School Board
Members and Taxpayers
While this policy primer highlights challenges presented to school boards
before, during and after collective bargaining negotiations, and general strategies
for mitigation of those situations, a closer review of the resulting agreements
is necessary to determine specific recommendations for future negotiations.
Recent changes in state law require all public school districts to publish their
collective bargaining agreements, which will allow the public a closer review of
those contracts. Subsequent editions of this primer will more thoroughly discuss
specific problems contained in collective bargaining agreements and how to avoid
or alleviate them.
Best wishes in your efforts,

Collin Hitt
Sonya Jones

Endnotes
1 115 Ill. Comp. Stat. 5/1 (1984).
2 See discussion infra Parts II-V.
3 Frederick M. Hess and Martin R. West, A Better Bargain: Overhauling Teacher

Collective Bargaining for the 21st Century (Cambridge, MA: Harvard University,
Program on Education Policy & Governance 2006), p. 15, citing Richard D.
Kahlenberg, The History of Collective Bargaining Among Teachers, in Jane Hannaway
and Andrew Rotherhan, ed., Collective Bargaining in Education: Negotiating Change
in Today’s Schools (Cambridge, MA: Harvard Education Press, 2006).
4 George C. Leef, Free Choice for Workers: A History of the Right to Work Movement
(Ottawa, IL: Jameson Books 2005), p. 103.
5 U.S. Dept. of Labor, Bureau of Labor Statistics, Union Members in 2008, Table 1,
USDL 09-0095, released Jan. 28, 2009, http://www.bls.gov/news.release/pdf/union2.
pdf (accessed Sept. 21, 2009).
6 U.S. Dept. of Labor, Bureau of Labor Statistics, Union Members in 2008, USDL
09-0095, released Jan. 28, 2009, http://www.bls.gov/news.release/pdf/union2.pdf
(accessed Sept. 21, 2009).
12 U.S. Dept. of Labor, Bureau of Labor Statistics, Occupational Employment and

Wages, Table 1, USDL 09-0457, released May 1, 2009, http://www.bls.gov/news.
release/pdf/ocwage.pdf (accessed Oct. 9, 2009).

13 Linda Kaboolian, “Table Talk,” Education Next, Summer 2006 (Hoover
Institution, 2006), p. 15.
14 Thomas W. Washborne and Michael D. Jahr, A Collective Bargaining Primer for

Michigan School Board Members, Mackinac Center for Public Policy, http://www.
mackinac.org/archives/2007/s2007-01.pdf, p. 5, 2007.
15 Friedrich A. Hayek, The Constitution of Liberty (Chicago: Henry Regnery

Company, Gateway Edition, 1960), p. 267, et seq.
16 Frederick M. Hess, A Better Bargain: Overhauling Teacher Collective Bargaining

for the 21st Century (North American Association of Education Negotiators 38th
Annual Conference, March 12, 2007), available at http://www.aei.org/speech/25741
(accessed Dec. 18, 2009).
17 Hess and West, A Better Bargain, p. 33, citing Frederick Hess, “School Boards at
the Dawn of the 21st Century: Conditions and Challenges of District Governance”
(Alexandria, VA: National School Boards Association, 2002).

Annual Conference, Mar. 12, 2007), available at http://www.aei.org/speech/25741
19 Ronald R. Booth, Collective Bargaining and the Illinois School Board Member, p.
26-7 (3rd 2009).
20 Peoria Sch. Dist. 150, __ PERI ___, Case Nos. 2006-CA-0002-S, et al.
(IELRB Opinion and Order, September 20, 2007), citing Cardinal Home Products,
Inc., 338 NLRB 1004 (2003); J.R.L. Food Corp. d/b/a Key Food, 336 NLRB 111
(2001).
21 Oak Lawn Cmty. High Sch., Dist. 229, 23 PERI 167, Case No. 2005-CA-
0080-C (IELRB Opinion and Order, Dec. 14, 2007).
22 Ibid.
23 Ibid.
24 Ibid.
25 Ibid.
26 Ibid.
27 Thomas W. Washborne and Michael D. Jahr, A Collective Bargaining Primer for

Michigan School Board Members, Mackinac Center for Public Policy, http://www.
mackinac.org/archives/2007/s2007-01.pdf, pp. 18-20, 2007.

28 115 Ill. Comp. Stat. 5/4 (1984).
29 115 Ill. Comp. Stat. 5/4.5(b).
30 See Professional Agreement between Rockford Education Association, Inc. and The
Rockford Board of Education, Rockford Public Schools, District No. 205, available at
http://webs.rps205.com/district/files/2D43DB309A014851977E8B06F5B53CBE.
pdf (accessed Dec. 17, 2009).
31, Table One (3rd 2009).
32 Ibid.
33 115 Ill. Comp. Stat. 5/4.5(a)-(b) (2003).
34 115 Ill. Comp. Stat. 5/4.5(a)(1)-(5) (2003).

36 115 Ill. Comp. Stat. 5/4 (2003).
31, Table One (3rd 2009).
38 42 U.S.C. §§ 2000(e)-2(a)(1)&(2).
39 115 Ill. Comp. Stat. 5/10(c) (1984).
40 115 Ill. Comp. Stat. 5/10(c) (1984).
36, (3rd 2009).
42 See 115 Ill. Comp. Stat. 5/12(a) (2003).
43 115 Ill. Comp. Stat. 5/12(a) (2003).
44 See State of Illinois, Illinois Education Labor Relations Board, Status of

Negotiations Notice (90-45-15 Day Notice), available at http://www.illinois.gov/
elrb/pdf/statneg.pdf (accessed Oct. 8, 2009).
45 115 Ill. Comp. Stat. 5/12(a) (2003).
46 115 Ill. Comp. Stat. 5/12(a) (2003).
47 115 Ill. Comp. Stat. 5/12(a) (2003).

48 115 Ill. Comp. Stat. 5/12(a) (2003).
49 115 Ill. Comp. Stat. 5/12(a) (2003).
50 115 Ill. Comp. Stat. 5/12(a) (2003).
51 115 Ill. Comp. Stat. 5/12(a) (2003).
52 115 Ill. Comp. Stat. 5/12(c) (2003).
53 115 Ill. Comp. Stat. 5/12(c) (2003).
68 (3rd 2009).
55 115 Ill. Comp. Stat. 5/12(c) (2003).
71 (3rd 2009).
57 See 115 Ill. Comp. Stat. 5/13 (1995).
58 State of Illinois, Illinois Education Labor Relations Board, Notice of Intent to

Strike, available at http://www.illinois.gov/elrb/pdf/strike.pdf (accessed Oct. 8, 2009).
59 115 Ill. Comp. Stat. 5/13(b) (1995).
60 115 Ill. Comp. Stat. 5/13(b) (1995).
61 115 Ill. Comp. Stat. 5/13(b) (1995).
62 115 Ill. Comp. Stat. 5/13(b) (1995).
63 115 Ill. Comp. Stat. 5/14(a) (1996).
64 115 Ill. Comp. Stat. 5/14(b) (1996).
65 State of Illinois Education Labor Relations Board Annual Report, Fiscal Year
2008, p. 13, available at http://www.illinois.gov/elrb/pdf/AnnualReportFY08.pdf
(accessed Nov. 1, 2009).
66 Peoria Sch. Dist. 150, __ PERI ___, Case Nos. 2006-CA-0002-S, et al.
(IELRB Opinion and Order, Sept. 20, 2007).
67 Ibid.
68 Oak Lawn Cmty. High Sch., Dist. 229, 23 PERI 167, Case No. 2005-CA-
0080-C (IELRB Opinion and Order, Dec. 14, 2007).
69 Ibid.

70 Illinois State Bd. of Educ. (Tropp), __ PERI ___, Case Nos. 2007-CA-0008-C,
2007-CB-0002-C (IELRB Opinion and Order, Sept. 19, 2007).
71 Cairo Sch. Dist. No. 1, 23 PERI 166, Case Nos. 2005-CA-0034-S, 2006-CA-
0003-S (IELRB Opinion and Order, Dec. 11, 2007).
72 Serv. Employees Int’l Union, Local 73, __ PERI ___, CaseNo. 2007-CB-
0005-C (IELRB Opinion and Order, Sept. 19, 2007).
73 See ibid.
74 Ibid.
75 115 Ill. Comp. Stat. 5/15 (1984).
76 Moore v. Illinois State Labor Relations Bd., 206 Ill. App. 3d 327, 564, N.E.2d
213, 7 PERI ¶4007 (1990). While the decisions of the Illinois Labor Relations Board
are not controlling in cases involving educational employers or employees, the Board is
required to consider such decisions. 115 Ill. Comp. Stat. 5/17.1 (2000).
77 115 Ill. Comp. Stat. 5/16(a) (1984).
78 115 Ill. Comp. Stat. 5/16(a) (1984).
79 115 Ill. Comp. Stat. 5/1 (1984).
80 Robert Barkley, letter to the editor, “Teacher Contracts, Student Needs,” Education
Week, Dec. 7, 2005, p. 38, quoted in Hess and West, A Better Bargain, p. 6.
60, Table Four (3rd 2009).
82 Hess and West, A Better Bargain, p. 14; see also, Ronald R. Booth, Collective
Bargaining and the Illinois School Board Member, p. 58-9 (3rd 2009).
83 Hess and West, A Better Bargain, p. 17.
84 Your Dues Dollars, Illinois Education Association, available at http://

illinoiseducationassociation.org/benefits/your-dues-dollars/ (accessed Dec. 20, 2009).
85 Hess and West, A Better Bargain, p. 19, citing National Education Association, “A
Vast Cadre of Human Resources,” NEA Today (Washington, D.C.: National Education
Association, 2001).
86 National Education Association, NEA’s Mission, Vision and Values, available at

http://www.nea.org/home/19583.htm (accessed Sept. 21, 2009).


88 Illinois Education Association, About, available at http://

illinoiseducationassociation.org/inside-iea/about/ (accessed Sept. 21, 2009).
89 See Illinois Education Association, About, available at http://

illinoiseducationassociation.org/inside-iea/about/ (accessed Sept. 21, 2009).
90 Ibid.
91 Ibid.
92 Ibid.
93 Ibid.
94 See 115 Ill. Comp. Stat. 5/7 (2004).
95 115 Ill. Comp. Stat. 5/7 (2004).
96 115 Ill. Comp. Stat. 5/7 (2004).
97 115 Ill. Comp. Stat. 5/7(b) (2004).
98 115 Ill. Comp. Stat. 5/7(b) (2004).
99 115 Ill. Comp. Stat. 5/7(b) (2004).
100 115 Ill. Comp. Stat. 5/7(b) (2004).
101 115 Ill. Comp. Stat. 5/7(b) (2004).
102 115 Ill. Comp. Stat. 5/7(c) (2004).
103 115 Ill. Comp. Stat. 5/7(c)(1) (2004).
104 115 Ill. Comp. Stat. 5/7(c)(2) (2004).
105 115 Ill. Comp. Stat. 5/7(c) (2004).
106 115 Ill. Comp. Stat. 5/7(c) (2004).
107 In the Matter of Flora Comm. Sch. Dist. No. 35 and Unit No. 35 Teaching
Assistants Education Association, IEA/NEA, 2007-RM-0001-S, (IELRB Opinion
and Order, Oct. 11, 2007), citing Allentown Mack Sales & Service, Inc. v. NLRB,
522 U.S. 359, 367 (1998) and Levitz Furniture Co., 333 NLRB 717 (2001).
108 115 Ill. Comp. Stat. 5/8 (2002).

109 115 Ill. Comp. Stat. 5/8 (2002).
110 115 Ill. Comp. Stat. 5/8 (2002).
111 115 Ill. Comp. Stat. 5/8 (2002).
112 115 Ill. Comp. Stat. 5/8 (2002).
113 115 Ill. Comp. Stat. 5/8 (2002).
114 115 Ill. Comp. Stat. 5/8 (2002).
115 115 Ill. Comp. Stat. 5/8 (2002).
116 115 Ill. Comp. Stat. 5/8 (2002).
117 115 Ill. Comp. Stat. 5/12(a) (2003).
118 115 Ill. Comp. Stat. 5/12(a) (2003).
119 115 Ill. Comp. Stat. 5/12(a) (2003).
120 115 Ill. Comp. Stat. 5/12(a) (2003).
121 Leef, Free Choice for Workers, p. 19.
122 115 Ill. Comp. Stat. 5/7(d) (2004).
123 115 Ill. Comp. Stat. 5/7(d) (2004).
124 Michigan Association of School Boards Labor Relations Service, The Board of
Education and the Collective Bargaining Process: A Practical Guide to Negotiations
(Lansing, MI: Michigan Association of School Boards Publication, 2003), p. 16.
125 Ibid.
126 Ibid.
127 Caroline Hoxby, “How Teachers’ Unions Affect Education Production,” The
Quarterly Journal of Economics, Aug. 1996, p. 683.
128 Abood v. Detroit Bd. Of Educ, 431 U.S. 209 (1977); Chicago Teachers Local No.
1 v. Hudson, 475 U.S. 292 (1986).
129 42 U.S.C. §§ 2000(e)-2(a)(1)&(2).
130 115 Ill. Comp. Stat. 5/11 (2005).
131 115 Ill. Comp. Stat. 5/11 (2005); 105 ILCS 5/24‑21.1.

132 115 Ill. Comp. Stat. 5/11 (2005).
133 See 115 Ill. Comp. Stat. 5/11 (2005).
134 Communications Workers of America v. Beck, 487 U.S. 735 (1988).
135 Abood, 431 U.S. 209.
136 The Oyez Project, Davenport v. Washington Educ. Ass’n , 551 U.S. 177 (2007),
available at http://oyez.org/cases/2000-2009/2006/2006_05_1589 accessed Nov. 1,
2009).
137 115 Ill. Comp. Stat. 5/11 (2005).
138 115 Ill. Comp. Stat. 5/11 (2005).
139 Public Law 93-360; 88 Stat. 395 (1974) (so-called Section 19 rights).
140 EEOC v. Univ. of Detroit, 904 F.2d 331 (6th Cir. 1990).
141 Charles W. Baird, “The Government-Created Right to Work Issue,” The

Freeman, Jan./Feb. 2006, p. 47.
142 National Right to Work Legal Defense Foundation, http://www.nrtw.org/rtws.

htm (accessed Oct. 27, 2006).
143 Ronald R. Booth, Collective Bargaining and the Illinois School Board Member,
p. 16 (3rd 2009).
144 Ibid.
145 Albert Shanker, “Al Shanker Speaks on Unions and Collective Bargaining,”
Education Week, May 14, 1997, pp. 35-36.
146 Fuller and Mitchell, “A Culture of Complaint,” p. 21.
147 Damon Darlin, “To whom do our schools belong?” Forbes, Sept. 23, 1996, p. 66.
148 Kathleen Harward, Market-Based Education: A New Model for Schools

(Fairfax, VA: Center for Market Processes, 1995), pp. 23-29.
149 MASB Collective Bargaining Practical Guide, p. 15 (“Settlement Patterns”).
150 MCL § 168.310; MCL Const. Art. 11, § 1.
151 Booth, Collective Bargaining, p. 15.
152 Quoted in Sol Stern, “How Teachers’ Unions Handcuff Schools,” City Journal,
Manhattan Institute, Spring 1997, p. 35.

153 115 Ill. Comp. Stat. 5/1 (1984).
154 Hess and West, “Strike Phobia: School boards need to drive a harder bargain,” p.
40.
155 Albert Shanker, “Al Shanker Speaks on Unions and Collective Bargaining,” p. 35.
156 MASB Collective Bargaining Practical Guide, p. 5. This corresponds well to a

nonscientific survey of variously sized school districts across the state conducted by La
Rae Munk in 1998, which showed that salaries and benefits of all employees consumed
an average of 82 percent of total school budgets.
157 Dawn Parker, “Union files labor complaint,” The Jackson Citizen Patriot, Feb.
28, 2006; see also “Union unhappy with District newsletter to residents,” Michigan
Education Digest, Mar. 7, 2006, http://www.educationreport.org/pubs/med/article.
asp?ID=7639 (accessed Oct. 27, 2006).
158 Robert C. O’Reilly, “Things a Board Ought Never Bargain,” presented at the
Annual Meeting of the National School Boards, 1983, p. 2, cited in Munk, Collective
Bargaining: Bringing Education to the Table, p. 19, n. 66.
159 Fuller and Mitchell, “A Culture of Complaint,” p. 22.
160 William G. Keane, Win Win or Else: Collective Bargaining in An Age of Public
Discontent (Thousand Oaks, CA: Corwin Press, Inc., 1966), p. 25.
161 Munk, Collective Bargaining: Bringing Education to the Table, p. 36.
162 “Republican Legislators Seek to Restrain Health Care Costs,” Michigan

Education Digest, Mar. 1, 2005, http://www.educationreport.org/pubs/med/article.
asp?ID=6991 (accessed Oct. 27, 2006), citing Booth Newspapers, “Legislators eye
teacher benefit costs,” Feb. 25, 2005.
163 Matthew Robinson, “Across the Table from Unions,” Investor’s Business Daily,
Mar. 19, 1998, p. 1A.
164 Munk, Collective Bargaining: Bringing Education to the Table, p. 36.
165 American Federation of Teachers, “Survey and Analysis of Teacher

Salary Trends 2004,” Jan. 2006, http://www.aft.org/salary/2004/
download/2004AFTSalarySurvey.pdf (accessed Oct. 27, 2006).
166 “Inflation continues to outpace teacher salary growth,” National Education

Association, Dec. 18, 2008, available at http://www.nea.org/home/29399.htm
167 “Rankings and Estimates, Rankings of the States 2008 and Estimates of School
Statistics 2009,” National Education Association, Dec. 2008, available at http://www.
nea.org/assets/docs/09rankings.pdf (accessed Dec. 20, 2009).

168 Frank Webster, “Teachers Deserve Good Benefits; Schools Deserve to Know What
They Cost,” Viewpoint on Public Issues, No. 98-20, July 6, 1998, Mackinac Center for
Public Policy.
169 Hess and West, A Better Bargain, p. 25. It should be noted that some teachers
are not covered by the Federal Social Security Act, possibly resulting in increased
contributions.
170 U.S. Constitution, Bill of Rights, Article XIV.
171 Linda Kaboolian, “Table Talk,” p. 16.
172 105 ILCS 5/21-2(c)(1)(i).
174 105 ILCS 5/10‑22.4.
176 105 ILCS 5/24A‑5.
177 105 ILCS 5/24‑8.
178 Hess and West, A Better Bargain, p. 11.
179 Michael Janofsky, “Teacher Merit Pay Tied to Education Gains,” New York
Times, Oct. 4, 2005,
http://www.nytimes.com/2005/10/04/college/coll04merit.html (accessed Oct. 27,
2006). See also “Massachusetts looking at teacher merit pay,” Michigan Education
Digest, Oct. 11, 2005, http://www.educationreport.org/pubs/med/article.
asp?ID=7380 (accessed Oct. 27, 2006).
180 V. Dion Haynes, “Bonuses, Relaxed Rules Proposed: Pilot Programs Are
Response to Gains By Charter Schools,” Washington Post, June 6, 2006, B4.
181 Michael Prodgursky, “Personnel Policy in Traditional Public, Charter, and

Private Schools,” NCSC Review 1, no. 1 (2003), pp. 10-13, cited in Hess and West, A
Better Bargain, p. 24.
182 Eric A. Hanushek and Richard R. Pace, “Who Chooses to Teach (and Why)?”
Economics of Education Review 14, no. 2 (1995), pp. 101-117, cited in Hess and
West, A Better Bargain, p. 24.
183 See, e.g., Deckerville EA Contract, 1997-2000, p. 28.
184 Michael Janofsky, “Teacher Merit Pay Tied to Education Gains,” New York
Times, Oct. 4, 2005.
185 Shanker, “Al Shanker Speaks on Unions and Collective Bargaining,” p. 37.

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BARGAINING FOR

Policy changes lives, and the Illinois Policy Institute is working to

Chicago Office Springfield Office

Recognizing that harmonious relationships are required between

6 Bargaining for Better Schools

By clarifying the collective bargaining process in general, we aim to help readers

The Illinois Policy Institute 7

The pivotal moment in those struggles came in 1960, when,

Shortly thereafter, President John F. Kennedy issued Executive Order 10988,

The Dynamics of Public-Sector Bargaining

8 Bargaining for Better Schools

Linda Kaboolian of Harvard’s Kennedy School of Government points out,

In the private sector, a union’s strength is limited by the employer’s

The Impact of Bargaining in Education

The public sector is limited by budgets,

10 Bargaining for Better Schools

The Illinois Policy Institute 11

Subjective Bargaining Standards: Good Faith

Beyond statutory requirements, the subjective standard of “good faith” in

1. Both parties should approach negotiations with an open mind and a

12 Bargaining for Better Schools

A violation of the statutory requirement to bargain in good faith does not

Subjects of Collective Bargaining

Under Illinois state law, collective bargaining in education must include

The Illinois Policy Institute 13

Once employees have certified an exclusive bargaining representative, the IELRA

There is no requirement to resolve any particular mandatory issue before another.

For example, permissive subjects of bargaining, as evidenced by the collective

14 Bargaining for Better Schools

The Illinois Policy Institute 15

Other Contract Requirements

Contracts between employer school districts and the exclusive bargaining

Even when a contract is in effect, it may become necessary to bargain when

16 Bargaining for Better Schools

One way to avoid such cumbersome processes is to include a zipper clause in

Mediation is the process whereby an outside professional is brought in to help

Collective bargaining negotiations must be conducted for no less than sixty

The Illinois Policy Institute 17

Teacher Strikes “Teacher union leaders in Illinois

18 Bargaining for Better Schools

Unfair Labor Practices

According to state law, educational employers are prohibited from:

1. Interfering with, restraining or coercing employees in the exercise of

The Illinois Policy Institute 19

1. Restraining or coercing employees in the exercise of the rights

Employer Duty to Bargain in Good Faith

In addition to statutory requirements for good faith bargaining discussed earlier,

20 Bargaining for Better Schools

Violation of Employee Rights

To establish an unfair labor practice for violation of employee rights, the

Union Duty of Fair Representation

When a union fails to file a grievance on behalf of an employee, the employee

The Illinois Policy Institute 21

22 Bargaining for Better Schools

Robert Barkley, former executive director of the Ohio Education Association,

One of the issues that must be confronted by a board is whether to hire a

Here, it is worth reprinting Ronald Booth’s articulation of school boards’ roles

The Illinois Policy Institute 23

As Individual Board Members

Contract terms are real, and their impact is measurable. Consequently,

Board Strategies in Collective Bargaining

24 Bargaining for Better Schools