STANDARDIZED (COVID) TESTING? VACCINE MANDATES AND TEACHERS' UNIONS COLLECTIVE BARGAINING AGREEMENTS IN URBAN SCHOOL DISTRICTS.

• Author: Ronan, Seamus J.

INTRODUCTION

With schools set to reopen in August 2021 amid a surge of COVID-19 cases, Los Angeles and New York City, the two largest school districts in the United States, both announced they would require all government workers, including teachers, to get the COVID-19 vaccine or face weekly testing. (1) Immediately, the legal challenges of implementing these vaccine mandates became apparent when several major unions stated that they needed to collectively bargain the specifics of such mandates with school district management. (2) While then-Mayor Bill de Blasio in New York faced opposition from several of the City's municipal unions, he initially received support from the United Federation of Teachers, the City teachers' union. (3) This would soon change as the City unilaterally changed the details of the policy without negotiations. (4) The question of which aspect of the vaccine mandates needed to be collectively bargained overshadowed school reopenings in New York, (5) Los Angeles, (6) and many major urban school districts across the country. (7)

Employers generally have the right to require vaccination, (8) and a growing number--either by persuasion or mandate--asked workers to get vaccinated against COVID-19 in August 2021 after the Food and Drug Administration (FDA) formally approved the Pfizer-BioNTech vaccine. (9) However, teachers' unions would potentially complicate the process of requiring vaccinations for school workers. Some questioned whether local collective bargaining agreements between school district management and teachers' unions would require the details of a mandate to be negotiated. (10) This scenario set the stage for a question of first impression in the courthouse and at the bargaining table in the late summer of 2021 as districts balanced union power and staffing realities with the need to create a safe school environment." Unions varied in their demands, which included how to address religious accommodations and medical exemptions, the frequency of testing for faculty and students regardless of vaccination status, payment for testing, salary increases, and fully remote work opportunities. (12)

This Note will study how two large urban school districts and teachers' unions negotiated school reopenings and health and safety protocols throughout the COVID-19 crisis. (13) This Note explores how school district management implemented a vaccination mandate in a public health emergency within the scope of their collective bargaining agreement (CBA) with local teachers' unions before the 2021 to 2022 school year. (14) Specifically, this Note examines whether school district management can mandate a no-opt-out vaccine policy for unionized public school workers, thus changing the terms and conditions of employment without bargaining. (15)

Unionized teacher CBAs are heavily negotiated (16) and affect a majority of U.S. public school teachers. (17) Negotiated teacher contracts today are "lengthy agreements that frequently are complex and impenetrable" and are controlled by state labor relations board decisions, arbitration rulings, and memoranda of understanding. (18) Teachers' unions are among "the most heavily unionized of all professions" (19) and remain political players as an interest group on national, state, and local levels. (20) They are more influential, on average, than all other entities in shaping education policy. (21) The scope of their influence was challenged in the heavily politicized school reopening conversations for both the 2020 to 2021 and 2021 to 2022 school years as education policy tied into politics, public health, and the national economy. (22)

In unprecedented moments, collectively bargained teacher contracts can provide clarity for educators and district leaders. (23) But CBAs are designed for long periods of time, and the disruption of COVID-19 forced districts and unions to adjust. (24) School districts, as employers, have the authority to act unilaterally, especially in exigencies. (25) But the overarching question is how can school district management balance teachers' unions CBAs with the unique challenges of schooling in a pandemic?

This Note primarily addresses the problem through the New York City and Los Angeles school districts for several reasons. First, urban public school districts have powerful teachers' unions with some of the strongest CBAs in the nation. (26) Second, such districts affect the greatest number of students (27) and employ a massive number of unionized teachers. (28) Finally, vaccine mandates were rarely implemented in several rural, typically Republican-led states. (29) In fact, many state legislatures proactively banned vaccine mandates, mask mandates, and other health protocols in the summer of 2021. (30)

Part I of this Note addresses the landscape for teachers' unions in 2021, including the law governing CBAs, management rights clauses, and how unions have bargained over health and safety policies, including vaccination mandates, in the past. (31) Next, Part II explores (1) how COVID-19 rapidly changed teachers' unions' expectations and CBAs from March 2020 to the beginning of the 2021 to 2022 school year as vaccines became readily available to the teachers in January 2021; (2) how different school districts acted; (3) the differing responses from teachers' unions; and (4) the points of contentions in the school reopening process at the bargaining table. (32) Finally, Part III provides the two main case studies: the disputed arbitration between the New York City Department of Education and the United Federation of Teachers over the City's vaccine mandate, and the collaborative negotiations between the Los Angeles Unified School District and United Teachers Los Angeles over their vaccination policy, with a comparative analysis of the different outcomes. Part III will conclude with what lessons can be learned for school district leaders and teachers' unions in future negotiations over COVID-19 health and safety policies, such as required boosters, student vaccinations, and other unanticipated health emergencies. (33)

1. THE LANDSCAPE OF TEACHERS' UNION CONTRACTS

   Part I addresses the statutory and legal landscape of teachers' unions contracts, including the laws on collective bargaining for teachers in the United States, the construction of CBAs, and management rights clauses. It describes how teachers' unions may file grievances against unfair labor practices and how some unions have previously reacted to vaccination policies and unilateral changes to the terms and conditions of their employment. Finally, it explains that the novelty of COVID-19 created an open legal question on whether a school district could unilaterally implement a vaccination mandate for teachers and staff.

   1. Federal and State Laws Regulating Teachers' Unions' Rights

      The laws that govern school decision-making during COVID-19 are predominantly local statutes and laws. (34) Unlike unionization activities in many industries, which are governed by comprehensive federal laws, (35) states separately establish collective bargaining rules for teachers. (36) State labor laws, state employment relations board rulings, and court rulings govern because there is no federal labor law covering public school employees. (37)

      There is no federal law giving public sector employees the right to bargain collectively. (38) Each state regulates the rights of both public and private sector employees to unionize and bargain collectively through state law passed by the legislature or court decisions. (39) Thirty-two states require local school districts to bargain collectively with their teachers; 14 states permit collective bargaining; and five states prohibit collective bargaining altogether. (40) States define the obligation of district management to bargain and what issues are negotiated. (41)

      Despite the differences from state to state, there are some common provisions found in state labor statutes. (42) Statutes include a section recognizing the rights of teachers to organize and collectively bargain. (43) A provision in these statutes describes a list of unfair labor practices by both the employer and employee. (44) An employer is engaging in unfair labor practices if they interfere with, restrain, or coerce teachers in the exercise of the teachers' statutorily granted rights. (45) Many statutes include the duty to bargain in good faith. (46) Finally, the statute may dictate a grievance and appeals procedure for teachers, (47) and a provision describing the ability of teachers to strike. (48)

      The majority of states do not allow teachers to strike due to concerns about the societal disruption and students receiving an undisturbed education. (49) Some states do authorize teachers to strike, but the right is not absolute. (50) For example, the Illinois Educational Labor Relations Act permits teachers to strike if a CBA has expired, mediation has been futile, and there is no danger present to the safety or health of the public. (51) While the inability to strike seems like a significant cap on teachers' unions' power, courts tend to interpret the collective bargaining rights of teachers broadly. (52) While national and local union leaders threatened teacher strikes amid the school reopening debate in the 2020 to 2021 school year, there were no reported strikes or walkouts. (53)

   2. The Contract Itself: The Collective Bargaining Agreement

      CBAs are "binding contract[s] between a union and a school district or other employing entity." (54) Only unions can negotiate CBAs. (55) State law regulates which terms can be bargained for in the CBA, and the CBA is typically renegotiated every three years. (56) The CBA usually names the outside arbitrator who will settle any contract disputes. (57) The working conditions topics typically found in teacher CBAs include health benefits, layoff procedures, class sizes, evaluation processes, grievance procedures, and association rights...