It May Be Prohibited But . . .THAT DOESN‘T MEAN YOU DON‘T HAVE TO TALK ABOUT IT

MNA Fall Conference 2014

PRESENTED BY:ROBERT T. SCHINDLER

RSCHINDLER@LUSKALBERTSON.COMDOWNLOAD THIS PRESENTATION AND FOLLOW ALONG AT:

WWW.LUSKALBERTSON.COM/MNA2014

Defining the Prohibited Subjects

WHAT HAVE THE MERC, OTHER AGENCIES, AND COURTS SAID ABOUT OUR NEWEST PROHIBITED SUBJECTS OF BARGAINING

Background – PA 112

• On May 2, 1994, Governor John Engler signed into law 1994 PA 112, which amended previous provisions of the Public Employment Relations Act (PERA), MCL 423.201, et seq., and added new provisions.

• PA 112 added to Section 15 of PERA, MCL 423.215, were subsections 2, 3 and 4, MCL 423.215(2), (3) and (4), which provide in relevant part:

(2) [A] public school employer has the responsibility, authority, and right to manage and direct on behalf of the public the operations and activities of the public schools under its control.

Background – PA 112

(3) Collective bargaining between a public school employer and a bargaining representative of its employees shall not include any of the following subjects:

* * *(4) . . . the matters described in subsection (3) are

prohibited subjects of bargaining between a public school employer and a bargaining representative of its employees, and, for purposes of this act, are within the sole authority of the public school employer to decide.

Background

• PA 112 originally created nine prohibited subjects (MCL 423.215(3)(a) through (i))

• Legislature passed 2011 PA 103, which added seven more prohibited subjects (MCL 423.215(3)(j) through (p))• Passed in conjunction with PA 100-102

• Legislature passed 2012 PA 349 (“Freedom to Work”), which added one more prohibited subjects (MCL 423.215(3)(q))

Prohibited Subjects Added In 2011 and 2012

• 2011 PA 103• Teacher Placement• 1248 related personnel decisions (policy and impact)• 1249 evaluations (system and impact)• Teacher discipline and standard• Classroom evaluations• Merit-based compensation under section 1250 of the RSC• Notification to parents under section 1249a

• 2012 PA 349• Any violation of the FTW law

MERC Treatment of Teacher Placement

• The MERC specifically states the following to be a prohibited subject:• “Any decision made by the public school employer

regarding teacher placement, or the impact of that decision on an individual employee or the bargaining unit.”

• By using the phrase “any decision . . . regarding” teacher placement, the legislature made clear it was speaking broadly in regard to this topic. Ionia Public Schools, MERC Case No C12 G-136 (4/22/14).

MERC Treatment of Teacher Placement

• The MERC has specifically held that “teacher placement” includes:• The involuntary transfer of teachers - Pontiac School

District, 27 MPER ¶ 52 (3/17/14);• Bid-bump job selection meetings – Ionia Public Schools; • Practice of allowing teachers to select from vacant positions

to avoid layoff – Pontiac School District, 28 MPER ¶ 1 (5/20/14); and

MERC Treatment of Personnel Decisions Under Section 1248

• The MERC specifically states the following to be a prohibited subject:• Decisions about the development, content, standards, procedures,

adoption, and implementation of the public school employer's policies regarding personnel decisions when conducting a staffing or program reduction or any other personnel determination resulting in the elimination of a position, when conducting a recall from a staffing or program reduction or any other personnel determination resulting in the elimination of a position, or in hiring after a staffing or program reduction or any other personnel determination resulting in the elimination of a position, as provided under section 1248 of the revised school code, 1976 PA 451, MCL 380.1248, any decision made by the public school employer pursuant to those policies, or the impact of those decisions on an individual employee or the bargaining unit.

MERC Treatment of Personnel Decisions Under Section 1248

• The MERC again holds that this prohibited subject is to be interpreted broadly

• Pontiac School District, 28 MPER 1 (5/20/14)• “§ 15(3)(k) is broadly worded to encompass decisions about procedures

used by public school employers when conducting a layoff or recall. We find nothing in the unambiguous language of § 15(3)(k) to indicate that its applicability is limited to decisions about the selection of employees for layoff or recall.”

• Thus, the prohibited subject not only includes the decision to layoff or recall, but also procedural issues such as timing and notification.

• Why is this important? Weidendorf v West Bloomfield, STC# 14-3 (ALJ Decision, 9/22/14)

MERC Treatment of Teacher Evaluation Under Section 1249

• Pontiac School District, 27 MPER 52 (3/17/14)

• Questionnaires distributed to students regarding the performance of their teachers need not be bargained because it relates to evaluation which is a prohibited subject of bargaining

MERC Treatment of Other Prohibited Subjects

• The MERC has not issued any decisions yet regarding the remaining new prohibited subjects (i.e., teacher discipline, classroom observations, 1250 merit pay, 1249a letter, and FTW)

• We do have some idea regarding the view of teacher discipline in Pontiac School District, 27 MPER ¶ 52 (3/17/14) – teacher unilaterally transferred for disciplinary reasons, but MERC relies on transfer provision rather than discipline

• Cases show belief that these prohibited subjects are to be interpreted broadly

Applying the Prohibited Subjects

WHAT DOES THIS MEAN FOR THE BARGAINING RELATIONSHIP

So what does it mean for a subject to be prohibited?

• Dictionary.com defines “prohibit” as follows:

• verb (used with object)• 1. to forbid (an action, activity, etc.) by authority or law:

“Smoking is prohibited here.”• 2. to forbid the action of (a person).• 3. to prevent; hinder.

So what does it mean for a subject to be prohibited?

• Our legislature defines it as follows:

• . . . the matters described in subsection (3) [of the public employment relations act (PERA)] are prohibited subjects of bargaining between a public school employer and a bargaining representative of its employees, and, for purposes of this act, are within the sole authority of the public school employer to decide.

So what does it mean for a subject to be prohibited?

• Our courts define it as follows:• Although the term “prohibited subjects” of bargaining is not specifically

defined by the Legislature, the courts have construed the term to be synonymous with the phrase “illegal subject” of collective bargaining as such is understood within the accepted lexicon of labor relations law.

• “Collective bargaining as a process requires both parties to confer in good faith - - to listen to each other. MCL 423.215(1); MSA 17.455(15)(1). In these subsections, the Legislature simply has removed the statutory requirement that public school employers listen to their employees and instructed the employers not to collectively bargain with regard to these subjects. In effect, the Legislature simply classified the disputed subjects as illegal subjects of collective bargaining.”

• Michigan State AFL-CIO v MERC, 212 Mich App 472, 486; 538 NW2d 433, 441 (1995).

So what does it mean for a subject to be prohibited?

• Either party to negotiations may refuse to discuss a prohibited subject (although may voluntarily do so).

• Public employer may act unilaterally with respect to any prohibited subject without bargaining to agreement or impasse.

• Neither party may maintain to impasse a proposal pertaining to a prohibited subject.

• Any provision in a collective bargaining agreement covering a prohibited subject is not enforceable.

• Either party may refuse to continue or carry over within a new contract any existing provision pertaining to a prohibited subject.

• A school district is “free to act unilaterally” in regard to a prohibited subject of bargaining.

Michigan State AFL-CIO v MERC, 453 Mich 362 at n 9, 380 (1995); Troy School District (Operating Engineers), 21 MPER 37 (2008); Wyoming Public Schools, MERC Case No. C01 L-234 (unpublished decision on motion, 10/15/02); Reese Public Schools, 27 MPER 4 (2013).

Some new case law on the topic

• Calhoun Intermediate Educ Assn, MERC Case No CU12 B-009 (9/15/14)

• Parties are bargaining when PA 103 is passed

• School district notifies union that its position relative to those topics has now changed

• Union continues to request the items remain in the contract

• ALJ and recently the MERC hold union committed a ULP.

• A party may not insist on the inclusion of a prohibited subject in bargaining once the other side has notified it will not bargain over it.

Some new case law on the topic

• Calhoun Intermediate Educ Assn, MERC Case No CU12 B-009 (9/15/14)• Court made clear in Michigan State AFL-CIO that in creating

prohibited subjects, the intent of the legislature was not to foreclose discussion of the topics. Rather, “a school district can never be found to have committed an unfair labor practice by refusing to bargain over them.”

• “By continuing to insist, as a condition of agreement, that the Employer agree to include prohibited topics in the contract, the Union acted improperly and violated its duty to bargain in good faith. Respondent contends that it wanted to leave those provisions in the contract in case Act 103 was repealed or otherwise invalidated. However, that does not justify including language that is not now and may never be enforceable. Including such language in the collective bargaining agreement is likely to cause considerable confusion for employees covered by the contract as well as for school administrators and union officials who must interpret and apply the contract.”

Some new case law on the topic

• Pontiac School District, 27 MPER ¶ 60 (5/21/14)

• In 2008, the school district and union settled a grievance by entering into a letter of agreement

• LOA made certain requirements over the school district’s use of long-term substitutes to fill vacant teaching positions instead of hiring teachers

• In 2012, the union files a grievance claiming that the school district is violating the LOA. The parties settle that grievance and the settlement dealt specifically with the recall rights for specific union members

• Shortly thereafter the school district notifies union that it would not honor the 2013 settlement and would return any consideration the union provided. Union files ULP.

Some new case law on the topic

• Pontiac School District, 27 MPER ¶ 60 (5/21/14)

• Union claims that the school districted repudiated the settlement agreement and thus committed a ULP by failing to bargain in good faith

• MERC holds that the repudiation of settlement agreement was not a ULP

• Topics of the settlement agreement are prohibited under section 15(3)(j) and (k) (i.e., teacher placement and personnel decisions)

• Because the terms were prohibited, the settlement agreement was never actually binding. Thus, a repudiation of that agreement cannot violate the duty to bargain in good faith

Some new case law on the topic

• Pontiac School District, Case Nos C11 K-197 and CU12 D-019 (ALJ Decision, 9/27/13)

• Union files a ULP against the school district making various claims – including that the school district unilaterally transferred a teacher

• Union also filed a grievance regarding the assignment of a teacher and filed for arbitration when the grievance was denied by the school district

• School District files a ULP against the union claiming the pursut of the grievance amounted to a violation of the duty to bargain in good faith

• ALJ agrees with the school district

Some new case law on the topic

• Pontiac School District, Case Nos C11 K-197 and CU12 D-019 (ALJ Decision, 9/27/13)• Assignment and transfer of teachers is within the prohibited subject

of “teacher placement”• Because parties are allowed to discuss or even bargain on prohibited

subjects, the mere filing of a grievance does not constitute a ULP• However, by denying the grievance, the school district is

communicating that it does not want to bargain of the topic• By taking grievance to arbitration, the union is insisting on the

bargaining over a prohibited topic – See Calhoun• ALJ orders union to pay costs associated with the arbitration –

including attorney fees

So . . . then we DON’T need to talk about them!

Well . . . you don’t need to BARGAIN over them.

Bargaining v. Discussion

• It is not unlawful for a school district and a union to discuss or even bargain over a prohibited subject – Michigan State AFL-CIO

• As discussed, it is a ULP for a party to insist on the bargaining of a prohibited subject

• As for discussion on a prohibited subject, it is not unlawful but there is no duty to do so under the PERA or corresponding ULP if not.

What is it to “bargain”?

• According to the PERA, “to bargain collectively is to perform the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or to negotiate an agreement, or any question arising under the agreement, and to execute a written contract, ordinance, or resolution incorporating any agreement reached if requested by either party, but this obligation does not compel either party to agree to a proposal or make a concession.”

Why not bargain?

• Because the law says that prohibited subjects are unenforceable does not mean that an arbitrator will follow

• Arbitral doctrines of parties receiving what they bargain for and the notion of the arbitrator being a creation of the contract do not help in this regard

• Best practices money• Can you simply remove them from the contract after the

fact? • Pontiac School District, repudiation of agreement regarding

prohibited subject

Why talk about them at all?

• It may be wise to meet with the union representative to clear up issues regarding what provisions or topics may, or may not, be prohibited subjects

• May create good will/aid relationship

• This should NOT be done at the bargaining table

• Err on the side of broad interpretation (our current MERC will probably agree with you)

Dear [Union Representative]:

The [School District] has completed a review of the . . . collective bargaining agreement and has identified current provisions that pertain to prohibited subjects of bargaining, within the meaning of Subsections 15(3) and 15(4) of the PERA. These subsections of the PERA provide that collective bargaining shall not include prohibited subjects and declare that such subjects are within the sole authority of the public school employer to decide. Additionally, the School District has identified illegal subjects of bargaining pursuant to Public Acts 53 and 349 of 2012.

* * *

Although the School District will not engage in negotiations pertaining to prohibited subjects of bargaining, the District is willing to meet with the Association, away from the negotiations table, to discuss any concerns or other matters regarding the identification of the contract provisions that have been lined-out as constituting prohibited subjects of bargaining in connection with certified staff. Please advise as to whether the Association wishes to schedule such a meeting.

Questions?

Robert T. SchindlerLusk & Albertson, PLC

www.LuskAlbertson.comRschindler@LuskAlbertson.com

(248) 988-5696Follow us on Twitter: @LuskAlbertson