December 21, 2006 Negotiations Update (79k )

Negotiation ground rules are not usually recommended or necessary during traditional bargaining. State law describes the three required ground rules in any negotiations process: meet at reasonable times, meet at reasonable places and confer in good faith.

The Employment Relations Board concluded that ground rules in general are not mandatory for bargaining under the Public Employee Collective Bargaining Act and held that ground rules do not relate to mandatory subjects of bargaining in state law ORS 243.650(7)(a)(5). (OPEU v. State of Oregon Executive Director, UP-71-93, 14 PECBR 14/767 (1993)).

If ground rules include any of those mandatory subjects, only those subjects must be bargained. Do not allow the union to pressure the district negotiating team into agreeing to ground rules before carefully reviewing them with the negotiating team.

By agreeing to ground rules, the school board enters into a separate contract with the union. This contract is enforceable and, if breached, the union could have cause to take action. This could delay negotiations and cost the district money it doesn’t have.

In the past, unions pushed boards into agreeing to various ground rules before engaging in negotiations. Those ground rules usually included such seemingly innocuous items as 1) treat others with respect; 2) provide names of all negotiation team members; 3) determine dates of sessions; 4) determine session beginning times; and 5) determine length of each session. Although these ground rules seem innocent and easy to comply with, they can be extremely restrictive and become fodder for an unfair labor practice complaint.

Too often the first negotiation session becomes a negotiation over ground rules. Districts have the right to say “no” to ground rules and press to proceed with actual negotiations over the collective bargaining agreement issues.

Many boards have agreed to negotiation ground rules and had no negative consequences. Such experiences can lead districts to agree to ground rules for future negotiations. But typically the more frequently a district agrees to ground rules, the greater the number of ground rules the union proposes. This leads to greater restrictions placed on the district.

Be very cautious when presented with ground rules. Even though the district may have agreed to similar or even the same ground rules in the past, the district is not obligated to agree to them during future negotiations. Ground rules are permissive subjects of bargaining and further negotiations cannot be conditioned upon agreement to ground rules. Districts considering agreeing to ground rules should review them carefully and consider all possible consequences.

For more information, please see the August 2004 OSBA Negotiator’s Notebook article “Ground Rules."