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Education Law
Alert
Bargaining
Over Equal Basis Bidding For
Non-Instructional Support
Services
by Marshall W.
Grate
In 1994,
Public Act 112 amended Section 15 of the Public Employment Relations
Act (PERA), MCL 423.215, and gave public school districts sole
authority to unilaterally subcontract non-instructional support
services without first bargaining with the affected employees'
union. Public Act 112 made the decision to subcontract non-instructional
support services a prohibited subject of bargaining. On January
4, 2010, Governor Granholm signed into law Public Act 201, part of
the Race To The Top legislation. This new Act modified the
public school's sole authority to subcontract such services.
The relevant changes are highlighted as follows:
(3) Collective
bargaining between a public school employer and a bargaining
representative shall not include any of the following subjects:
. . .
(f) The
decision of whether or not to contract with a third party for one or
more noninstructional support services; or the procedures for
obtaining a contract for noninstructional support services other than bidding described in this
subdivision; or the identity of the third-party; or
the impact of the contract for noninstructional support services on
individual employees or the bargaining unit. However, this subdivision applies only if
the bargaining unit that is providing the noninstructional support
services is given an opportunity to bid on the contract for the
noninstructional support services on an equal basis as other bidders.
.
. .
(4) except as otherwise provided in Subsection
3(f), 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 the
purposes of this Act, are within the sole authority of the public
school employer to decide.
Based on these
modifications, a number of school districts have received broadly
worded demands from unions to bargain over any and all aspects of a
subcontracting decision. For example, the union may demand
bargaining over "...the content of requests for proposals, bidding
procedures, the scope of any third party contract and over all
matters concerning the bidding process."
We believe
that these bargaining demands overstate a district's bargaining
obligation under Public Act 201. The only issue that is open
for negotiation is the union's opportunity to participate on an equal
basis with other bidders. A union should have the same
opportunity to receive a RFP at the same time as other third-party
contractors, should be able to attend any pre-bid meetings, should
receive all notices relating to modifications of the RFP, and be
subject to the same deadlines for submitting and opening of
bids.
This narrow
exception does not extend to the entire bidding process, including
the content of a request for proposal and/or the scope of a third
party contract.
If a school
district does receive a demand to negotiate over subcontracting of
non-instructional support services, please contact your Clark Hill
PLC attorney if you have further questions regarding this issue.
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