Union Commits Unfair Labor Practice When It Demands Arbitration Over A Prohibited Subject of Bargaining
In an unpublished opinion, Michigan Education Association v Vassar Public Schools, No. 337899, May 22, 2018, the Michigan Court of Appeals affirmed the Michigan Employment Relations Commission’s (MERC) decision granting summary disposition to the District finding that the MEA committed an unfair labor practice, when it demanded arbitration over a prohibited subject of bargaining-recall of a laid off teacher, in violation of the Public Employment Relations Act (PERA).
The teacher, who had been rated “minimally effective” in his performance evaluation, sought recall to an open first grade teaching position. The District denied the teacher’s recall request based on the Board policy which required that only “effective” teachers could be recalled; the District had the sole authority under PERA to determine who would be recalled; and that the District had reserved the right in the CBA to direct layoffs and recalls. In fact, the CBA expressly stated that the grievance procedure did not apply to “[e]valuation, layoff or recall of a teacher provided the district complies with board policy,” or [a]ny matters which are prohibited subjects of bargaining provided the district complies with Board policy.” Slip. Op. at 1.
The MEA subsequently filed a grievance on behalf of the teacher asserting that by refusing to recall the teacher to an available position for which he was certified and qualified, the District deprived the teacher of a “significant property interest in his employment without procedural due process and violated its duties under the CBA…”and that the teacher was “constructively discharged.” The District filed an unfair labor practice charge against the MEA with MERC asserting that the grievance procedure and subsequent demand for arbitration could not be filed to challenge a prohibited subject of bargaining.
The Michigan Court of Appeals rejected the MEA’s attempt to re-label the issue as a denial of procedural due process, or constructive discharge, rather than a failure to recall the teacher which was a prohibited subject of bargaining. The Court noted that regardless of the legal theory of wrongdoing, the MERC did not err when it determined that the MEA’s grievance concerned prohibited subjects of bargaining and that the MEA committed an unfair labor practice by demanding to arbitrate its grievance. The Court also observed that whether the teacher was laid off and not recalled, or was terminated did not change the outcome since both concern prohibited subjects of bargaining.
In addition, the Court noted that to the extent the MEA asserted that the MERC’s decision violated the teacher’s due process rights because he was not provided with notice and a hearing before his effective discharge, this argument did not provide an independent basis for challenging the District’s decision under the parties’ CBA. The Court remarked that “PERA’s procedures regarding adjudication of unfair labor practices are sufficient to satisfy constitutional due process requirements” and that “by complying with PERA, [the District] provided the [teacher] with sufficient due process. Slip. Op at 5. (citations omitted).
The Court rejected the MEA’s argument that it could challenge the District’s decision about the implementation of the employer’s policy regarding recall since the parties had incorporated by reference, other statutes, the Michigan and United States Constitutions and the District’s Board policies, into the CBA. The Court determined that the District’s decision how the implementation of the recall policy impacted an individual employee was a prohibited subject of bargaining that could not be arbitrated.
MEA’s argument that the teacher’s “effective discharge” was “arbitrary and capricious,” was likewise rejected by the Court. The Court noted that under Summer v Southfield Board of Education, 310 Mich App 660 (2015), the circuit court was the proper place to challenge whether a teacher’s layoff was a subterfuge for discharge, not the grievance procedure.
Finally, the Court rejected the MEA’s waiver argument. The Court found that the District did not “clearly and unambiguously” waive its statutory rights by incorporating various laws into the parties CBA and had, in fact, explicitly reserved those rights.
This case illustrates that prohibited subjects of bargaining are not subject to a grievance/arbitration procedure in a collective bargaining agreement as long as a district follows its board policies on layoff and recall. A union may commit an unfair labor practice if it demands arbitration regarding a prohibited subject of bargaining.
If you have any questions regarding this decision or any other collective bargaining issues, please contact a member of the Clark Hill Education Group.
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