Teacher Union Cannot Insist on Contract Including Prohibited Subjects
On January 7, 2016, the Michigan Court of Appeals issued a decision for publication affirming the decision of the Michigan Employment Relations Commission ("MERC") that found that the Calhoun ISD Education Association ("Association") committed an unfair labor practice under the Public Employment Relations Act ("PERA) when it insisted on maintaining prohibited subjects in a successor collective bargaining agreement.
In May of 2011, the Calhoun Intermediate School District ("District") and the Association started negotiations for a successor collective bargaining agreement. The District presented a proposal that removed provisions from the expired agreement that involved prohibited subjects under Section 15(3) of PERA, MCL 423.215(3), such as teacher placement, layoff/recall, teacher discipline and teacher evaluation. The Association responded that the language could not be removed without bargaining and that it would refuse to bargain over prohibited subjects. During several months of negotiations, the District maintained its position that prohibited subjects should be removed from the successor collective bargaining agreement. The Association always responded insisting that the prohibited subjects be maintained in the successor collective bargaining agreement. After the Association filed a petition for fact finding, the District filed an unfair labor practice charge with MERC that asserted the Association's insistence on including prohibited subjects in a successor agreement constituted bad faith bargaining.
MERC ruled that the Association breached its duty to bargain in good faith when it repeatedly insisted on including prohibited subjects of bargaining in a successor agreement. The Association appealed MERC's decision to the Michigan Court of Appeals.
The Michigan Court of Appeals had no difficulty in affirming MERC's decision. The Court of Appeals observed that although the parties may discuss prohibited subjects, PERA prohibits parties from bargaining over them. Once the District made clear that it did not want any provisions pertaining to the prohibited subjects in a successor collective bargaining agreement, the Association had to cease and desist over its position that the language be included. The Court of Appeals stated:
The Association crossed the line from discussing a prohibited subject, which it is allowed to do, and began bargaining over it in spite of the district's clear statements that it would not include such language in the successor agreement. We conclude, as did the MERC, that the Association's insistence on maintaining prohibited language in a successor CBA is an act of bad faith.
In addition, the Court of Appeals rejected the Association's argument that the District was barred from filing an unfair labor practice complaint until the parties reached impasse in their negotiations. The District did not have to wait for impasse before filing an unfair labor practice charge over the Association's bad faith bargaining that resulted from its insistence on including prohibited subjects in a successor collective bargaining agreement.
The Calhoun Intermediate School District case adds to a growing body of both MERC and appellate court case law which have unreservedly affirmed the efficacy of prohibited subjects in Section 15(3) of PERA. While the parties can discuss prohibited subjects, once the school district ends the discussion, prohibited subjects become out of bounds for the collective bargaining process. If you have any questions, please contact your Clark Hill PLC education attorney.