Strategic Preparation for Teacher Contract Negotiations: Understanding Legal Requirements and Anticipating Union Interests

As school officials prepare to negotiate teacher collective bargaining agreements (CBA), effective preparation goes beyond merely reviewing budgets and timelines. School officials can set themselves up for success by entering the process with a clear understanding of their school’s legal obligations and the teachers’ union’s interests. Developing a strategy that adheres to the law and anticipates the union’s priorities will allow school officials to prepare clear proposals framed to promote collaboration rather than conflict.

Teacher Placement

Since several amendments to PERA Section 15 took effect in February 2024, teacher placement, evaluation, and discipline are no longer prohibited bargaining subjects. Many school officials have already bargained over these topics, while some boards and unions have agreed to “kick the can down the road.” Regardless of whether language already appears in your current CBA or language proposals regarding these topics will be on the table for the first time this winter, school officials are obligated to bargain these now-mandatory subjects.

Beginning negotiations using union-drafted proposals can significantly erode the school’s leverage and increase the risk of agreeing to unfavorable CBA terms. Instead, school officials should consider their existing board policies and use them as the baseline for developing and negotiating any new CBA provisions.

In terms of teacher placement, amended Revised School Code (RSC) Section 1248 establishes factors that school officials must consider when making all personnel decisions, including teacher placement decisions. The statute provides that teacher effectiveness, as measured by a school’s performance evaluation system under RSC Section 1249 or as otherwise collectively bargained, must be used as a factor for teacher placement decisions. Other factors that may be considered in personnel decisions under RSC Section 1248 include: (1) length of service in a grade level or subject area; (2) the teacher’s disciplinary record; and (3) relevant special training, other than professional development or continuing education as required by the school or Michigan law, and integration of that training into instruction. Length of service may not be used as the sole factor in teacher placement decisions but may be considered as a tiebreaker if such a decision involves two or more employees who are otherwise equal. RSC Section 1248 also requires a school board to adopt, implement, maintain, and comply with “clear and transparent” procedures for teacher placement decisions.

Notably, RSC Section 1248’s application is limited to classroom teachers and does not apply to instructional coaches, counselors, or employees who are not the teacher of record or assigned to a classroom. Many teacher CBA recognition clauses cover not only teachers but also counselors, social workers, nurses, and other staff members. School officials should expect that unions will seek to expand these teacher placement procedures to apply to non-teaching professionals or bargaining union members who do not meet RSC Section 1248’s current definition of “teacher.”

Further, when preparing for CBA negotiations, school officials should anticipate that unions will likely provide template contract language that generally seeks to reestablish seniority-based systems for teacher placement decisions. In responding to those demands, school officials should consider the practical implications that impact administrative options when making teacher placement decisions. Accordingly, school officials should strive to negotiate teacher placement frameworks that preserve administrative discretion and prioritize selecting the most qualified and effective teachers for each position, rather than defaulting to automatic placement based on seniority alone.

Also, it is important to consider that RSC Section 1248 does not provide an exhaustive list of factors for consideration. This means that school officials can look to include additional factors outside of the enumerated factors of length of service in grade level or subject area, disciplinary record, and relevant special training. Therefore, school officials should consider including additional factors, such as a teacher’s:

• knowledge of the content area;
• ability to impart that knowledge;
• rapport with students, parents, and colleagues; and
• ability to withstand the rigors of teaching.

When responding to union proposals, school officials need not agree to standards exceeding those listed in RSC Section 1248. Agreeing to language that restricts the factors that can be considered for teacher placement decisions may reduce administrative discretion and flexibility. School officials should instead consider strategies to negotiate and establish “clear and transparent” procedures that maintain, if not expand, discretion and flexibility in teacher placement decisions.

Grievance Procedures

When negotiating grievance procedures in teacher CBAs, school officials should strive for a narrow definition of what constitutes a “grievance.” Best practice is to limit grievances to alleged express violations of the CBA itself, rather than broader claims of “misinterpretation or misapplication of board policies, practices, or rules.” Union proposals that seek to expand the grievance definition to include board policy or “established practice” significantly broaden exposure to grievances and invite needless arbitration over matters that are properly deemed management rights.

School officials should also carefully consider the structure of the grievance process and whether appeals to the board are a necessary step. Removing the board from the grievance appeal process can help avoid politicizing disputes and preserve the board’s role as a policy-making body rather than a quasi-judicial forum. As an alternative, schools may consider incorporating a mediation step that uses the Michigan Employment Relations Commission’s free mediation services as a final or optional step before arbitration.

Additionally, grievance language should include firm procedural guardrails and clear limits on an arbitrator’s authority. Strict time limits should apply to both parties, with explicit consequences—such as grievances being deemed withdrawn if the union misses a deadline—to encourage prompt resolution. Just as important, it is recommended that the CBA expressly and narrowly restrict arbitral authority over former prohibited subjects, such as evaluations (unless required by law), assignments, layoffs and recall, and discipline, thereby preserving the school’s limited resources, controlling costs associated with prolonged grievance litigation, and maintaining the flexibility necessary for school officials to make timely, sound employment decisions.

As the bargaining season quickly approaches, if you need assistance with negotiation preparation, strategies, or language, please contact a Thrun labor attorney.