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When to start bargaining - A legal and strategic perspective

The Legal, Labor and Employment Services staff at OSBA recently was asked about timing the start of the bargaining process:

  • When does the law require the parties to begin negotiating? 
  • How long do we have to respond to the union’s request to negotiate a successor contract? 
  • How long does the union have to respond to our request? 
  • Why does the union want to begin so soon? 
  • Why is the union dragging its feet to get negotiations started? 
  • Is it better strategy to begin sooner or later?

Statutes governing public-sector collective bargaining in Oregon do not directly address when the parties must begin negotiations, nor do they address how long the parties have to respond to requests to bargain successor agreements. There are, however, some legal considerations to keep in mind.

For example, does the current or expiring contract contain timelines within which the parties have agreed to 1) request to negotiate a successor agreement, 2) meet to discuss ground rules, or 3) exchange initial proposals? Remember that failure to meet these timelines may cause the agreement to automatically extend into the following year or be grounds for a grievance under the current contract.

The district should also consider the legal impact of the status quo period. Will delaying the start of negotiations cause the process to extend beyond the expiration of the current agreement? If so, during the status quo period, the district must continue to meet most of its current obligations that are mandatory subjects of bargaining.

The biggest obligation in this category is often the district’s insurance contribution. Without a maximum established in the contract, the district is often obligated to pay the increases in insurance premiums until the parties reach a settlement. On the other hand, once the contract expires, other provisions of the agreement will no longer be enforceable. For example, the district will no longer be obligated to continue complying with fair share agreements or grievance procedures (for grievances filed after expiration). How will the legal impacts of the status quo period affect the eagerness of each party to begin bargaining?

In addition to legal issues, districts may want to address economic considerations when deciding how early to begin the bargaining process. For example, would the parties prefer to start early in order to jump ahead of the trends that will eventually be established by other districts’ contract settlements? Conversely, would the parties rather wait to get a better understanding of the latest comparability data on salary and insurance? The parties may also decide negotiations over compensation cannot be meaningfully conducted until the legislature determines school funding for the next biennium.

The law does not provide much guidance about when to initiate the bargaining process, and there isn’t a strategy that suits in all situations. Districts should assess their own circumstances and commence bargaining accordingly.

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