IN THE SUPREME COURT OF IOWA
No. 16 / 05-1068
Filed October 19, 2007
WATERLOO EDUCATION ASSOCIATION,
Appellant,
vs.
IOWA PUBLIC EMPLOYMENT RELATIONS BOARD,
Appellee,
and
WATERLOO COMMUNITY SCHOOL DISTRICT,
Intervenor-Appellee.
________________________________________________________________________
Appeal from the Iowa District Court for Polk County, Douglas F.
Staskal, Judge.
The association appeals the decision of the district court affirming
an agency decision finding that their overload pay proposal was not a
mandatory subject of collective bargaining. REVERSED AND
REMANDED.
Gerald L. Hammond, Des Moines, for appellant.
Jan V. Berry, Des Moines, for appellee.
Brian L. Gruhn of Gruhn Law Firm, Cedar Rapids, for intervenor-
appellee.
2
APPEL, Justice.
In this case, we must decide whether an overload pay proposal
submitted by the Waterloo Education Association (Association) to the
Waterloo Community School District (District) is a mandatory or
permissive subject of collective bargaining under section 20.9 of the Iowa
Public Employment Relations Act (PERA). The Public Employment
Relations Board (PERB) ruled that the proposal was a permissive subject
of bargaining. The district court affirmed. We find the specific proposal
in this case to be a mandatory subject of collective bargaining. We
therefore reverse the district court and remand the matter for further
proceedings.
I. Prior Proceedings.
The Association filed a petition with PERB seeking an expedited
determination on whether the overload pay proposal it presented to the
District was a mandatory subject of bargaining under section 20.9 of
PERA. The overload pay proposal provided that elementary teachers who
teach more than three hundred minutes per day as part of regular work
assignments “shall receive additional compensation.” “Secondary and
middle school teachers who are assigned to teach six (6) classes per day”
were also entitled to additional compensation. The overload pay proposal
provided that additional teaching assignments would be compensated at
“the employee’s hourly proportionate per diem rate.”
PERB issued a preliminary ruling finding that the proposal
constituted a permissive subject of bargaining and followed the
preliminary ruling with a lengthy final order containing the Board’s
reasoning. In its final order, PERB stated that it believed that the
precedents of this court required the result. PERB, however, stated that
3
this court’s precedents suffer from an error that PERB itself may have
precipitated through its own poorly reasoned decisions. The Board
stated that if it did not feel constrained by our precedents, it would hold
that the proposal was a mandatory subject of collective bargaining.
The Association appealed the decision to district court, which
affirmed the PERB decision. The Association then filed a timely notice of
appeal with this court.
II. Standard of Review.
As a threshold matter, we must determine whether the Board’s
interpretation of section 20.9 is entitled to deference. Under Iowa Code
section 17A.19(10)(c), (l) (2005), deference is warranted where
interpretation of the statute is “clearly . . . vested by a provision of law in
the discretion of the agency.” “If the interpretation is so vested, then the
court may reverse only upon a finding the agency’s interpretation was
‘irrational, illogical, or wholly unjustifiable.’ ” Birchansky Real Estate,
L.C. v. Iowa Dep’t of Pub. Health, State Health Facilities Council, 737
N.W.2d 134, 138 (Iowa 2007) (quoting Iowa Code § 17A.19(10)(c), (l)).
Alternatively, if interpretation has not been explicitly vested in the
agency, our review is for errors at law. Id. Whether a proposal is a
mandatory subject of collective bargaining, as defined by Iowa Code §
20.9, has not been explicitly vested in PERB’s discretion. See Insituform
Technologies, Inc. v. Employment Appeal Bd., 728 N.W.2d 781, 800 (Iowa
2007) (holding that interpretation of “willful” was not vested within the
agency’s discretion). Therefore, our review is for correction of errors at
law. Iowa Code § 17A.19(10)(c).
4
III. Discussion.
A. Introduction to Scope of Bargaining Issues. With the
enactment at the height of the Great Depression of the National Labor
Relations Act (NLRA), 29 U.S.C. sections 151–69 (2005), the prevailing
view was that mandatory collective bargaining was an appropriate
mechanism to adjust the conflicting relationship between economically
powerful employers and comparatively weak employees. While the power
of employees would obviously be strengthened by collective bargaining, it
was generally believed that market forces would prevent employees from
gaining too much at the expense of an employer. If wages became too
high, the price of goods or services offered by the employer could become
uncompetitive, thereby forcing moderation in employee demands.
In contrast, it was almost unanimously assumed that the collective
bargaining model had no application to the public sector. Even President
Franklin D. Roosevelt advised public employee leaders that “the process
of collective bargaining, as usually understood, cannot be translated into
the public service” because the employer was “the whole people”
speaking through their public representatives. Letter from Franklin D.
Roosevelt to Luther Steward (August 31, 1937), as reprinted in Christine
G. Cooper & Sharon Bauer, Federal Sector Labor Relations Reform, 56
Chi.-Kent L. Rev. 509, 511–12 (1980). In short, it was feared that
collective bargaining would intrude too deeply upon public policy matters
that should be decided by responsible public officials.
Over time, the presumption that the collective bargaining model
had no application to the public sector came under challenge. As noted
by Professor Merton Bernstein, after the enactment of the NLRA and the
growth in the number and power of private sector unions, a large
5
number of semiskilled and skilled workers entered the middle class,
while public employees such as teachers did not experience similar
gains. This apparent disparity increasingly caused government
employees to demand reforms designed to improve their economic
standing. Merton C. Bernstein, Alternatives to the Strike in Public Labor
Relations, 85 Harv. L. Rev. 459, 460 (1971). Across the country, various
commissions and studies were conducted to determine if and how
collective bargaining concepts could be applied to the public sector.
Beginning with Wisconsin in 1959, state legislatures began to
enact legislation authorizing collective bargaining in the public sector.
Joan Weitzman, The Scope of Bargaining in Public Employment 40–41
(1975). By 1974, forty states had adopted some kind of collective
bargaining for public employees, while twenty-eight states enacted
comprehensive statutes of general applicability. Id.
Most of these state public collective bargaining statutes adopted
language similar to the NLRA model, which expansively authorized
mandatory collective bargaining over wages, hours, and “other terms and
conditions of employment.” Many state public collective bargaining
statutes, however, also included management rights provisions designed
to reserve certain managerial and policy decisions. The goal seems to
have been to allow public employees to collectively bargain to improve
their economic well-being without unduly sacrificing the ability of
politically responsible officials to manage public bodies and establish the
broad contours of public policy.
Iowa lagged behind in the enactment of public employment
collective bargaining legislation. At first, public employees pursued
collective bargaining through exclusive employee representatives without
6
express legislative authorization. In State Board of Regents v. United
Packing House & Allied Workers, Local No. 1258, 175 N.W.2d 110 (Iowa
1970), this court held that public agencies did not have the power to
agree to exclusive representation by an employee organization for
collective bargaining without legislative authorization. 175 N.W.2d at
113–14. Four years later in 1974, the Iowa legislature enacted PERA.
1974 Iowa Acts ch. 1095, § 9.
In PERA, the legislature declined to adopt the NLRA model on the
question of what subject matters are mandatory subjects of collective
bargaining. Instead of incorporating the expansive NLRA language
mandating collective bargaining over wages, hours and “other terms and
conditions of employment,” the Iowa legislature instead specifically
enumerated seventeen topics subject to collective bargaining. Iowa Code
§ 20.9.
These seventeen topics are sometimes referred to as the “laundry
list” of mandatory subjects of collective bargaining. Specifically, section
20.9 provides that the public employer and the employee organization
“shall” negotiate in good faith with respect to “wages, hours, vacations,
insurance, holidays, leaves of absence, shift differentials, overtime
compensation, supplemental pay, seniority, transfer procedures, job
classifications, health and safety matters, evaluation procedures,
procedures for staff reduction, in-service training, and other matters
mutually agreed upon.” Id.
Like many other states, the Iowa legislature also included a
management rights provision in the statute. Section 20.7 of PERA states
that public employers shall have “the exclusive power, duty, and right
to,” among other things, “[d]irect the work of its public employees,”
7
“[m]aintain the efficiency of governmental operations,” and “[d]etermine
and implement methods, means, assignments and personnel by which
the public employer’s operations are to be conducted.” Id. § 20.7. Thus,
Iowa’s PERA contains both a provision establishing mandatory collective
bargaining on specified matters and a contrapuntal management rights
clause preserving exclusive, public management powers in traditional
areas.
This court has recognized that section 20.9 establishes two classes
of collective bargaining proposals: mandatory and permissive. City of
Fort Dodge v. Iowa Pub. Employment Relations Bd., 275 N.W.2d 393, 395
(Iowa 1979). Mandatory subjects are those matters upon which the
public employer is required to engage in bargaining. Id. Permissive
subjects are those that the legislature did not specifically list in section
20.9, but are matters upon which both the public employer and the
employee organization simply agree to bargain. Id.
Whether a proposal is a mandatory or permissive subject of
bargaining under section 20.9 is a critical issue. If a subject is within
the scope of mandatory bargaining, the parties are required to bargain
over the issue, and if agreement is not reached, the statutory impasse
procedures, which ultimately lead to binding arbitration, are available.
Decatur County v. Pub. Employment Relations Bd., 564 N.W.2d 394, 396
(Iowa 1997). If, on the other hand, the proposal is a permissive subject
of bargaining under section 20.9, the public employer may reserve the
right to decide the issue unilaterally by declining to participate in
bargaining. When the employer declines to bargain over a permissive
subject, the impasse procedures in PERA are not available and decisions
8
related to the subject remain within the exclusive power of the public
employer.
The central issue presented in this case is whether the
Association’s overload wage proposal is a mandatory or permissive
subject of collective bargaining.
B. Methods of Resolving Scope of Bargaining Disputes.
1. Scope of bargaining in the state and federal courts. From the
beginning of collective bargaining, the question of what subject matters
are mandatory subjects of collective bargaining sparked considerable
litigation as employers and employee organizations jockeyed for position.
In general, the United States Supreme Court has construed the NLRA to
provide a relatively broad scope of mandatory bargaining under the
phrase “wages, hours, and other terms and conditions of employment.”
The United States Supreme Court has, however, held that even the
expansive NLRA scope-of-bargaining provision has limits. For example,
in Fibreboard Paper Products Corporation v. National Labor Relations
Board, 379 U.S. 203, 85 S. Ct. 398, 13 L. Ed. 2d 233 (1964), the high
court observed that the phrase “other terms and conditions of
employment” was a flexible term which would expand to conform with
prevailing industry practices. Id. at 210, 85 S. Ct. at 402–03, 13
L. Ed. 2d at 238.
In an important concurring opinion in Fibreboard, Justice Potter
Stewart advanced the concept that there were certain core
entrepreneurial activities that were not subject to collective bargaining.
Id. at 223, 85 S. Ct. at 409–10, 13 L. Ed. 2d at 245–46 (Stewart, J.,
concurring). This line drawing, however, between bargainable “terms
and conditions” and core entrepreneurial activities was to be done on a
9
case-by-case basis. Id. Ultimately, the Supreme Court articulated a
balancing test for scope-of-bargaining issues in which the benefits for
labor-management relations must be greater than the burdens placed on
an employer subject to bargaining. First Nat’l Maintenance Corp. v. Nat’l
Labor Relations Bd., 452 U.S. 666, 679, 101 S. Ct. 2573, 2581, 69
L. Ed. 2d 318, 331 (1981).
In the context of state public bargaining statutes that use the
expansive NLRA phrase “other terms and conditions of employment” to
describe mandatory bargaining subjects, the analysis becomes even more
complicated with the inclusion of a management rights provision.
Employment terms and conditions are often intertwined or entangled
with public policy issues that have traditionally been within the purview
of public employers. In order to accommodate the special needs of public
employers, state courts with NLRA-type scope-of-bargaining provisions
have developed a wide variety of “balancing tests” to be applied at the
threshold stage of the scope-of-bargaining analysis. See, e.g., Central
City Educ. Ass’n, IEA/NEA v. Illinois Educ. Labor Relation Bd., 599 N.E.2d
892, 904–05 (Ill. 1992) (holding that test includes whether benefits of
bargaining for employee outweighs burden on employer); City of
Biddeford by Board of Educ. v. Biddeford Teachers Ass’n, 304 A.2d 387,
420 (Me. 1973) (Wernick, J., concurring in part, dissenting in part)
(noting quantitative and qualitative importance of invasion of managerial
functions may override prima facie eligibility for collective bargaining as
working condition); Local 195, IFPTE, AFL-CIO v. State, 443 A.2d 187,
192–93 (N.J. 1982), superseded by statute, N.J. Stat. Ann. § 34.13A–23
(1990), as recognized in Jackson Twp. Bd. of Educ. v. Jackson Educ. Ass’n
ex rel. Scelba, 757 A.2d 311, 314 (N.J. Sup. Ct. 2000) (stating proper
10
approach is to balance degree to which a proposal intimately and directly
affects the work and welfare of employees against the degree to which the
proposal significantly interferes with management prerogatives related to
government policy); Pennsylvania Labor Relations Bd. v. State College
Area Sch. Dist., 337 A.2d 262, 268 (Pa. 1975) (discussing whether impact
of issue on interest of employee in wages, hours, and other terms and
conditions of employment outweighs its probable effect on basic policy of
school system).
The rationale of state courts adopting the threshold balancing
approach is that the “terms and conditions of employment” that
constitute mandatory subjects of collective bargaining are also invariably
connected with some functions arguably within the purview of
management, either through a management rights provision or through
traditional analysis. City of Biddeford, 354 A.2d at 419 (Wernick, J.,
concurring in part, dissenting in part) (noting as a practical matter,
working conditions are invariably connected with some managerial
function). Conversely, almost every management decision traditionally
thought to be within the purview of a public employer has some impact
on an employee’s terms and conditions of employment. Rapid City Educ.
Ass’n v. Rapid City Area Sch. Dist. No. 51–4, 376 N.W.2d 562, 566 (S.D.
1985) (Henderson, J., concurring) (stating that almost every decision of
public employer affects “terms and conditions of employment”); see also
Los Angeles County Employees Ass’n, Local 660 v. County of Los Angeles,
108 Cal. Rptr. 625, 628 (Cal. Ct. App. 1973) (same).
Thus, in cases involving statutes with expansive NLRA-type scope-
of-bargaining provisions, there is a conflict between the expansive
concepts of employee rights and traditional public employer prerogatives.
11
These are two highly territorial pikes at large in the legal pond of
collective bargaining, each with the capacity of devouring the other. In
order to avoid the predominance of either management or employee
rights, state courts have concluded that they have no other choice but to
engage in balancing of some kind. Joint Bargaining Comm. of
Pennsylvania Soc. Serv. Union v. Pennsylvania Labor Relations Bd., 469
A.2d 150, 153 (Pa. 1983) (noting “[w]ithout a proper balance the two
sections [scope of bargaining including “terms and conditions” and
management rights provision] might negate each other”); Rapid City, 376
N.W.2d at 566 (Henderson, J., concurring) (stating that the court is
required to walk “legal tightwire” between employer and employee rights).
The judgment of these courts that they must somehow
accommodate employee and management rights through a balancing
process is certainly understandable. Without clear legislative standards
as to the scope of bargaining, the courts in these states have been left to
their own devices to fill in the statutory gap. Kenai Peninsula Borough
Sch. Dist. v. Kenai Peninsula Educ. Ass’n, 572 P.2d 416, 423 (Alaska
1977) (stating that more specific guidance from legislature would be
“helpful”); Dunellen Bd. of Educ. v. Dunellen Educ. Ass’n, 311 A.2d 737,
741 (N.J. 1973) (noting that legislative reference to “terms and
conditions” of employment establishes shadowy line and hardly furnishes
dispositive guidance).
While a judicially created balancing test has the potential of
preserving the rough contours of the grand legislative compromise
between management and employee rights over time, any balancing test
is extraordinarily difficult to apply in individual cases. This difficulty is
not surprising in light of the fact that it is impossible to objectively
12
measure or quantify the weight of employer and employee interests.
Further, even if there was some kind of objective measurement of each
interest, the balancing test requires courts to balance the apples of
employee rights against the oranges of employer rights. No court has
been able to successfully advance a convincing formula for determining
how many employee rights apples it takes to equal an employer rights
orange. Finally, the ill-defined nature of balancing tests in general gives
rise to the possibility that invisible, unconscious, but perhaps inevitable
judicial bias could creep into the decision-making process. See
Developments in the Law – Public Employment, 87 Harv. L. Rev. 1676,
1689 (1984) (noting that with no clear standards in balancing tests,
judges invariably fall back on their own political visions of the ideal
power relationship between government and its employees). As noted by
Harry H. Wellington and Ralph K. Winter in their classic essay, courts
are badly suited to make judgments about which issues should be
bargainable. Harry H. Wellington & Ralph K. Winter, The Limits of
Collective Bargaining, 78 Yale L.J. 1107, 1126 (1968).
In light of these challenges, it is not surprising that the state court
application of threshold balancing tests in the scope-of-bargaining
context has yielded a riot of fact-specific results that defy orderly
characterization. For instance, a lengthy annotation presents in
excruciating detail the conflicting results on a myriad of issues. See
generally James D. Lawlor, Validity and Construction of Statutes or
Ordinances Providing for Arbitration of Labor Disputes Involving Public
Employees, 68 A.L.R.3d 885 (2007), comparing, for example, West
Hartford Educ. Ass’n v. DeCourcy, 295 A.2d 526 (Conn. 1972) (class size
subject to mandatory bargaining), with West Irondequoit Teachers Ass’n
13
v. Helsby, 315 N.E.2d 775 (N.Y. 1974) (class size not bargainable), Clark
County Sch. Dist. v. Local Gov’t Employee Management Relations Bd., 530
P.2d 114 (Nev. 1974) (school calendar issues negotiable), with Burlington
County College Faculty Ass’n v. Bd. of Trustees, Burlington County
College, 311 A.2d 733 (N.J. 1973) (college calendar not negotiable), and
Local 195, 443 A.2d at 187 (subcontracting of work not subject to
mandatory negotiation), with Unified Sch. Dist. No. 1 of Racine County v.
Wisconsin Employment Relations Comm’n, 259 N.W.2d 724 (Wisc. 1977)
(issue of subcontracting subject to mandatory bargaining). While a
balancing test for determining scope-of-bargaining issues may be
necessary when legislatures have delegated open-ended authority to the
courts, it is an imperfect approach for courts that favor principled
decision-making over ill-defined discretionary exercises. Balancing tests
are a product of raw legal necessity, not judicial preference.
Where a legislature elects not to use the expansive NLRA phrase
“other terms and conditions of employment” and chooses instead to list a
finite number of enumerated topics, the case for a balancing test
becomes even less compelling. For example, in Kansas, the legislature
originally adopted an NLRA-type mandatory bargaining provision in a
statute regarding public teacher collective bargaining. In response, the
Kansas Supreme Court developed an impact test that involved balancing
the impact of an issue on the well-being of the individual against the
overall effect on the operation of the school system. Nat’l Educ. Ass’n of
Shawnee Mission, Inc. v. Bd. of Educ. of Shawnee Mission Unified Sch. No.
512, 512 P.2d 426, 435 (Kan. 1973), superseded by statute, Kan. Stat.
Ann. § 75-4322(t) (1977), as recognized in Kansas Bd. of Regents v.
14
Pittsburgh State Univ. Chapter of Kansas-Nat’l Educ. Ass’n, 667 P.2d 306,
318 (Kan. 1983).
While the Kansas legislature at first embraced the approach of
Shawnee Mission, it later amended its statute to delete the NLRA-type
scope-of-bargaining language. Unified Sch. Dist. No. 501 v. Sec’y of
Kansas Dep’t of Human Resources, 685 P.2d 874, 876–77 (Kan. 1984).
Instead the legislature provided a closed, finite list of topics that would
be mandatory subjects of collective bargaining for teaching professionals.
Id. In light of the legislative action, the Kansas Supreme Court, following
the lead of the responsible administrative agency, sanctioned the
adoption of a topics test to replace its prior impact balancing test to
determine scope-of-bargaining issues. Id.
Under the topics test, the scope of bargaining is determined by
whether the topic of a proposal is within the scope of one of the
specifically enumerated subjects of collective bargaining. If a proposal
was definitionally within the scope of one of the enumerated topics, it is a
mandatory subject of collective bargaining. If it fell outside the definition
of any mandatory topic, the proposal was not negotiable. Id. at 877. A
threshold balancing determination is not required under the topic test
because the legislature has already performed the balancing by including
each specific topic as a subject of mandatory bargaining.
Thus, instead of dealing with two pikes in a pond, legislatures that
have adopted a “laundry list” have gone to dry land and established a
legal shooting range with a series of legislatively established targets of
mandatory bargaining. Proponents of mandatory bargaining must hit
one of the targets, or come close enough to one, in order to avoid
characterization of the proposal as permissive. The role of the courts in
15
this setting is not to balance the pikes, but to judge the accuracy of the
proponent’s legal shot.
2. Iowa approach to scope of bargaining issues. In determining
whether a proposal is within the scope of section 20.9, this court noted
early on that the Iowa House of Representatives approved an amendment
to the original bill deleting the expansive NLRA phrase “or other terms
and conditions of employment” from the list of mandatory subjects.
Charles City Cmty. Sch. Dist. v. Pub. Employment Relations Bd., 275
N.W.2d 766, 771 (Iowa 1979) [hereinafter Charles City I]; Fort Dodge, 275
N.W.2d at 398. The final version of the bill did not contain the expansive
NLRA language. Instead, the final version of the Iowa PERA contained a
finite, or laundry list, of mandatory subjects of collective bargaining.
1974 Iowa Acts ch. 1095, § 9. Because the Iowa PERA does not include
the phrase “other terms and conditions of employment,” this court has
held that if a proposal does not fall within one of the laundry list of terms
contained in section 20.9, it is not a subject of mandatory bargaining.
Charles City I, 275 N.W.2d at 771–73; Fort Dodge, 275 N.W.2d at 397–98.
In other words, this court has held that the legislature’s laundry list in
section 20.9 is exclusive and not merely descriptive or suggestive. See
Lawrence E. Pope, Analysis of Iowa Public Employment Relations Act, 24
Drake L. Rev. 1, 33–34 (1974).
In Charles City I, the court announced a two-pronged test to
determine negotiability questions. Charles City I, 275 N.W.2d at 772–73.
The first prong was a topics test—whether a particular proposal fell
within the scope of any of the specifically delineated terms in section
20.9. Id. If a proposal was not within the scope of one of the specifically
delineated terms, it was not subject to mandatory bargaining. Id. If,
16
however, the proposal was within the scope of one of the delineated
terms, the court moved on to the second prong, specifically, whether
collective bargaining over the proposal would be illegal. Id. If the
proposal was not illegal then the proposal would be subject to collective
bargaining. Id. This two-step approach was reiterated the following year
in Charles City Education Association v. Public Employment Relations
Board, 291 N.W.2d 663, 666 (Iowa 1980) [hereinafter Charles City II].
Even though the early PERA cases articulated this straightforward
two-pronged scope-of-bargaining test, the court nonetheless struggled
with the relationship between section 20.7, which contains the exclusive
rights of management, and section 20.9, which contains the mandatory
bargaining provisions. For example, in Charles City I, the court expressly
noted the need to “harmonize” the sections. Charles City I, 275 N.W.2d
at 775. Similarly, in Charles City II, the majority approved the
harmonizing approach in Charles City I, noting the need to construe
statutory provisions in the context of the entire enactment. Charles City
II, 291 N.W.2d at 666. Although the majority in these cases did not
expressly embrace a balancing test, the implication in Charles City I and
II seems to have been that employee rights in section 20.9 had to be
balanced or harmonized with management rights in section 20.7.
Early dissenting opinions rejected the harmonizing approach.
According to the dissents, the list of topics in section 20.9 should be
regarded as exceptions to or carve-outs of the management rights in
section 20.7. As a result, the dissenters argued that there is no need to
harmonize or balance the sections in determining whether a proposal is
subject to mandatory bargaining. According to the dissenters, the only
requirement is simply to properly define the scope of the terms in section
17
20.9. See Charles City I, 275 N.W.2d at 776 (McCormick, J., dissenting
in part) (noting that employer’s right to direct work under section 20.7
does not affect scope of bargaining under section 20.9); Fort Dodge, 275
N.W.2d at 399 (McCormick, J., dissenting) (rejecting “balancing” of
employee bargaining rights against reserved employer prerogative).
In 1987, the court returned to better moorings in Northeast
Community School District v. Public Employment Relations Board, 408
N.W.2d 46 (Iowa 1987) [hereinafter Northeast]. In this case, the court
reiterated the two-pronged test of negotiability presented in Charles City I
and II. Id. at 50. Unlike in Charles City I and II, however, the court
further noted that if a proposal falls within an exception established by
section 20.9, “then the proposal is subject to negotiation regardless of
the broad grant of authority given to public employers under section
20.7.” Id. This principle is the essence of a topics test, where the
question of the scope of bargaining is primarily a definitional exercise
and does not involve balancing of employee interests against
management interests. In effect, the court in Northeast adopted the
analytical approach of the dissenters in Charles City I and Fort Dodge.
The court returned to the issue of the relationship between
sections 20.7 and 20.9 in State v. Public Employment Relations Board,
508 N.W.2d 668 (Iowa 1993) [hereinafter State]. In State, the court noted
that “[v]irtually all of the mandatory subjects of collective bargaining
impact in some way on the reserved rights of public employers.” State,
508 N.W.2d at 675. Instead of engaging in a threshold balancing of
employer and employee interests, however, the State court reemphasized
the two-pronged approach adopted in the early Iowa PERA cases.
According to State, the first prong inquiry is a topics test—whether the
18
proposal, on its face, logically falls within the definition of any term
contained in section 20.9. Id. at 672. In determining whether a proposal
fell within the definition of a section 20.9 term, the State court observed
that consideration must be given to the predominant purpose of the
proposal and to what the employer would be bound to do if the proposal
was adopted. Id. at 673.
The State court, however, did recognize that in some cases, it may
be necessary to conduct a balancing test to determine the predominant
topic of ambiguous or hybrid proposals. Id. at 674. This “subordinate”
balancing test, however, is distinguishable from threshold balancing
tests employed by other states because it is not utilized in the ordinary
case, but only in cases where the subject of a proposal “escapes easy
definition.” Id. In terms of methodology, the court in State adopted the
topics approach of the dissents in early cases and of the court in
Northeast, while leaving the door open for balancing in unusual cases
where it was difficult to determine the predominant topic.
Most recently, this court has considered the scope-of-bargaining
issue in two cases involving wages. In Iowa City Association of
Firefighters, IAFF Local 610 v. Iowa Public Employment Relations Board,
554 N.W.2d 707 (Iowa 1996) and Waterloo Community School District v.
Public Employment Relations Board, 650 N.W.2d 627 (Iowa 2002)
[hereinafter Waterloo I], the court considered whether hours and wage
proposals were within the scope of mandatory bargaining under section
20.9. In these cases, however, the court seemingly retreated from the
teachings of Northeast and State.
In Firefighters, the hours proposal limited the time that firefighters
could be required to assume “active duties” within any twenty-four-hour
19
shift of “regular” duty hours. Firefighters, 554 N.W.2d at 708. A second
wage proposal was similar to the hours proposal, with the important
distinction that it did not expressly limit the time and hours of “active
duty,” but provided that management pay a wage premium in the event it
requested firefighters to perform “active duty” tasks during “regular duty”
hours. Id. at 709.
The majority of this court in Firefighters held that both proposals
were not subject to mandatory bargaining. With respect to the hours
proposal, the court noted that the proposal “clearly impinged” upon
management’s authority by dictating when the specific duties of
firefighters could be performed. Id. at 711. With little analysis, the court
also rejected the wage proposal on the ground that it too impermissibly
impinged upon management rights. Id. A dissenting opinion asserted
that the proposals fell within the scope of the term “wages” under section
20.9 and that the topics test, as utilized in Northeast and State, should
end the analysis. Id. at 712 (Carter, J., dissenting).
Although State was cited in the majority opinion, the Firefighters
impingement rationale is inconsistent with State’s observation that all
subjects of mandatory bargaining impinge in some way on management
rights. State, 508 N.W.2d at 675. The Firefighters impingement
rationale is also inconsistent with Northeast, as that case held that once
a proposal is found within the scope of a mandatory subject of collective
bargaining under section 20.9, it did not matter whether a proposal
“impinges” on management rights. Northeast, 408 N.W.2d at 50.
This court’s most recent exploration of the distinction between
permissive and mandatory subjects of bargaining under PERA was in
Waterloo I, 650 N.W.2d at 627. In this case, the court considered a
20
number of proposals, including an overload wage proposal that was
similar to the proposal involved in this case. As here, the overload wage
proposal in Waterloo I stated that teachers who teach more than three
hundred minutes per day, or intermediate and secondary teachers who
teach more than five periods per day, would be entitled to overload pay.
Id. at 634. Unlike the current proposal, however, the proposal in
Waterloo I allowed teachers to refuse overload assignments. Id. In short,
under the proposal in Waterloo I, a teacher would have been empowered
to say “nice, but no thanks” to a request by school managers that a
teacher accept an overload assignment.
In Waterloo I this court, citing Firefighters, held that an overload
wage proposal with an employee veto provision would “adversely affect
the employers’ exclusive right to control work performed.” Id. As in
Firefighters, the court cited State’s two-pronged test, including the topics
test, but did not directly apply it. Id. at 630.
C. Application of Scope-of-Bargaining Principles.
1. Introduction. In this case, the parties in Waterloo I are back
before us. This time, however, the posture of the case is different in two
respects. First, the proposal now advanced by the Association does not
allow teachers to opt out of overload assignments. As a result, unlike in
Waterloo I, management retains the unfettered right to assign overload
work to any teacher of its choosing. In addition, PERB has taken the
unusual posture of participating actively in this litigation. As noted
previously, the Board’s decision explicitly questioned both the wisdom
and consistency of its and this court’s prior mandatory bargaining
opinions. In its brief filed in this case, PERB urged this court to clarify
the confusion.
21
2. Proper test of negotiability. At the outset, we must determine
the proper test for determining whether a proposal is subject to
mandatory bargaining under section 20.9. The determination of whether
a proposal is a mandatory subject of collective bargaining is an issue of
law based upon a facial review of the proposal. Iowa Code
§ 17A.19(10)(c), (l); Saydel Educ. Ass’n v. Pub. Employment Relations Bd.,
333 N.W.2d 486, 490 (Iowa 1983).
In resolving scope-of-bargaining issues, we reject the approach
that any proposal which “infringes” upon management rights is not
subject to mandatory bargaining. As was stated in State, all mandatory
subjects of bargaining infringe in some way on management rights. If
the test of negotiability were truly a simple infringement test, literally
nothing would be subject to mandatory collective bargaining. State, 508
N.W.2d at 675; Charles City I, 275 N.W.2d at 776 (McCormick, J.,
dissenting in part). Certainly any wage proposal “infringes” on
management rights by allocating resources that might be otherwise
available for programming or other educational expenditures. To the
extent that language in Waterloo I and Firefighters is to the contrary, it is
disapproved.
We also reject the notion that the issue of negotiability should
ordinarily be resolved at the outset by balancing the employer’s interest
in management rights against the interest of employees in mandatory
bargaining. As noted above, while many states adopt such threshold
balancing tests, the states which employ this method are generally
operating under NLRA-type statutes which couple the expansive “other
terms and conditions of employment” language with management rights
provisions. The balancing test is necessary, in these jurisdictions, to
22
prevent management rights from being totally eviscerated by unfettered
collective bargaining.
Because Iowa’s PERA does not contain this expansive language,
the subjects of mandatory bargaining delineated in section 20.9 should
be viewed as exceptions to management rights reserved in section 20.7.
Charles City I, 275 N.W.2d at 772. By creating the section 20.9 laundry
list of exceptions to management prerogatives, the legislature has already
done the balancing. There is no occasion for this court to judicially
rebalance what the legislature has already balanced.
As a result, we reject the “infringement” or threshold balancing test
approach and instead reaffirm the two-pronged approach to negotiability
described in State and Northeast. The first prong for determining
whether a proposal is subject to collective bargaining, the threshold
topics test, is ordinarily a definitional exercise, namely, a determination
of whether a proposal fits within the scope of a specific term or terms
listed by the legislature in section 20.9. Once that threshold test has
been met, the next inquiry is whether the proposal is preempted or
inconsistent with any provision of law. Ordinarily, this two-step process
is the end of the matter. Only in unusual cases where the predominant
topic of a proposal cannot be determined should a balancing-type
analysis be employed to resolve the negotiability issue. See Clinton Police
Dep’t Bargaining Unit v. Iowa Pub. Employment Relations Bd., 397 N.W.2d
764 (Iowa 1986) (hybrid proposal involving both safety and staffing
subjects held to primarily relate to staffing and thus not subject to
mandatory collective bargaining).
3. Application of topics test to overload pay proposal. Having
determined that the two-pronged approach of State and Northeast is the
23
proper test of negotiability, we now must apply the test to the overload
pay proposal presented here. In order to apply the threshold topics test,
however, we must first determine the meaning of the term “wages” in
section 20.9. Then, we must determine if the proposal falls within the
scope of that definition.
In determining the meaning of the term “wages,” our prior cases
embrace several guides to interpretation. These cases hold that because
the legislature has listed the term “wages” in section 20.9 as a topic
separate and apart from other tangible employee benefits, such as
vacation and insurance, the term “wages” is subject to a relatively narrow
construction in order to avoid an interpretation that renders subsequent
items in the laundry list redundant and meaningless. Under these
cases, the term “wages” cannot be interpreted to include a broad package
of fringe benefits because the legislature has specifically included some
fringe benefits in this section’s laundry list. Fort Dodge, 275 N.W.2d at
397. We see no reason to depart from the approach of these prior cases.
On the other hand, the legislature’s use of a laundry list of
negotiable subjects does not mean that the listed terms are subject to the
narrowest possible interpretation, but only that the listed terms cannot
be interpreted in a fashion so expansive that the other specifically
identified subjects of mandatory bargaining become redundant. The
approach most consistent with legislative intent thus is to give the term
“wages” its common and ordinary meaning within the structural
parameters imposed by section 20.9. Charles City II, 291 N.W.2d at 668;
Fort Dodge, 275 N.W.2d at 397.
In order to determine the common or ordinary meaning of words,
we have often consulted widely used dictionaries. Black’s Law Dictionary
24
defines “wages” as “[p]ayment for labor or services, usually based on time
worked or quantity produced.” Black’s Law Dictionary 1573 (7th ed.
1999). Merriam-Webster’s Collegiate Dictionary defines wages as payment
for labor or services on an “hourly, daily, piecework basis.” Merriam-
Webster’s Collegiate Dictionary 1322 (10th ed. 2002).
Applying the threshold topics test in State, we conclude that the
proposal falls within the definition of the term “wages.” At its core, the
proposal simply seeks to introduce an element of piecework pay into the
school district’s wage structure. The proposal, moreover, calls for the
payment of money and not some other kind of fringe benefit. The
proposal if implemented would provide an economic reward based upon
services rendered. As noted by one state public employee relations board
when considering the bargainability of an overload pay proposal, “It is
only possible to rationally bargain for ‘an honest day’s pay’ if one can
also negotiate the boundaries and the contents of ‘an honest day’s
work.’ ” Oregon Pub. Employees Union, Local 503 v. State of Oregon, 10
PECBR 51 (July 1987); see also Rapid City, 376 N.W.2d at 565 (proposal
for twenty percent increase in annual compensation for each fifty-five-
minute period in excess of five at junior or senior high level subject to
mandatory collective bargaining).
The employee’s economic interest in more pay for more work is
precisely the kind of employee interest that leading commentators for
decades have suggested should be subject to collective bargaining. Clyde
Summers, Bargaining in the Government’s Business: Principles and
Politics, 18 U. Tol. L. Rev. 265, 271 (1987); Clyde W. Summers, Public
Employee Bargaining: A Political Perspective, 83 Yale L.J. 1156, 1192–95
(1974). The interest of the employees in more pay for less work is
25
generally opposed by the majority of voters and taxpayers who are
interested in obtaining more services at less cost. Summers, 18 U. Tol.
L. Rev. at 271. The inclusion of the term “wages” in the laundry list is
designed to provide employees with a degree of protection on economic
issues from potentially powerful low-wage political influences.
The overload pay proposal in this case is distinct from the proposal
involved in Waterloo I. In Waterloo I, the proposal sought to prohibit
management from assigning overload work to an employee who did not
wish to undertake it. As a result, in Waterloo I the proposal involved a
hybrid of “wages” and “management rights.” Waterloo I, 650 N.W.2d at
634. Although not articulated in this fashion, there was at least an issue
as to which topic dominated the proposal. In contrast, the proposal here
does not seek to limit management’s discretion to assign work, but
relates solely to payment for an amount of services rendered by an
individual teacher. The proposal does not handcuff management
prerogatives in any way other than to require increased payment for
certain services.
Of course, whenever management is required to pay more for
teacher services, the resultant increase in costs impinges on other
management choices by diverting available resources from other
potential uses. This impingement happens, in all cases involving wages
and simply cannot be the basis for excluding a proposal from mandatory
collective bargaining. Otherwise, the term “wages” would be entirely
written out of the statute.
We recognize the possibility that artful negotiators may attempt to
craft proposals that incidentally involve payment of increased wages to
teachers, but which are really designed to influence educational policy or
26
limit management discretion. The State test, however, requires that a
proposal relate predominantly to a bargainable issue. It further allows a
balancing of interests in those unusual hybrid cases where mandatory
and permissive elements are inextricably intertwined in a proposal.
Having concluded that the Association’s overload pay proposal
meets State’s threshold topics test, we now turn to the second prong of
the State test—whether collective bargaining over the proposal would be
illegal. Neither the District nor PERB has suggested that the overload
pay proposal violates or is preempted by Iowa law. As a result, we find
that the overload pay proposal presented here is a mandatory subject of
collective bargaining.
In closing, we note that, as was consistently emphasized in our
prior cases, we do not pass in any way on the merits of the overload pay
proposal. Charles City I, 275 N.W.2d at 769. We hold only that the
question of whether the overload pay proposal made in this case should
be adopted in whole or in part by the district must be determined, if
possible, by the parties themselves through good faith negotiations and
in the event of impasse, through binding arbitration as provided in
PERA. The finding of this court that the overload pay proposal is subject
to mandatory bargaining is an endorsement only of the legislature’s
chosen process of resolving employer-employee disputes involving
“wages,” not the merits of the proposal.
IV. CONCLUSION.
We hold that the overload wage proposal in this case presents a
mandatory subject of collective bargaining under section 20.9 of PERA.
As a result, the decision of the district court is reversed and the case
remanded for further proceedings.
REVERSED AND REMANDED.