Union's Insistence upon Arbitration over Teacher Placement is an Unfair Labor Practice

In Pontiac School District and Pontiac Education Association (MERC Case Nos. C11 K-197 and CU12 D-019 (signed on September 27, 2013)), Administrative Law Judge (ALJ) David M. Peltz shed further light on the scope and meaning of Section 15(3)(j) of the Public Employment Relations Act (PERA), which makes any decision by a public school employer regarding the placement of teachers or the impact of that decision a prohibited subject of bargaining.

Building on his decision in Ionia Public Schools that was issued earlier this year, ALJ Peltz found that the Pontiac school district acted within its authority under Section 15(3)(j) when it unilaterally reassigned a teacher without bargaining with the union. He also found that the union violated its duty to bargain in good faith under Section 10(1)(e) by processing a grievance concerning that reassignment to arbitration over the school district's objections.

Both decisions set favorable precedent for school officials trying to efficiently operate their business and effectively manage their staff.

ALJ Peltz stated that the mere filing of a grievance that concerns a prohibited subject of bargaining does not constitute a violation of Section 10(1)(e). However,  under Section 15(3)(j) "the school district had the absolute right to end those discussions at any time" and it was the union's advancing of the grievance to arbitration over the school district's objection that violated PERA. ALJ Peltz stated that the union was "not only attempting to compel the Employer to discuss the grievance, it was also seeking to enforce through the grievance procedure contract provisions and/or past practices which were explicitly made unenforceable by Section 15(3)(j)."

In the same decision, ALJ Peltz found that the union did not commit an unfair labor practice by filing an unfair labor practice charge concerning the school district's unilateral transfer of a teacher. ALJ Peltz stated that, unlike grievance proceedings, unfair labor practice charges before MERC are not part of the bargaining process. Instead, the union was "seeking a determination as to whether the transfer of [the second teacher] constituted a unilateral change in terms or conditions of employment in violation of Section 10(1)(e) of PERA or a "decision regarding teacher placement" for purposes of Section 15(3)(j) of the Act as asserted by the school district."

ALJ Peltz emphasized that at the time of the events giving rise to the charge, neither the MERC nor any of its ALJs had interpreted the scope or meaning of Section 15(3)(j). Since the issue was one of first impression, ALJ Peltz found that the union's filing of an unfair labor practice charge did not violate PERA. However, ALJ Peltz stated, ". . . it is conceivable that the filing of multiple charges in the face of established contrary case law could constitute a violation of Section 10(1)(e) of the Act . . .."

Of particular significance, ALJ Peltz recommended that the MERC order the union to reimburse the school district for the costs, including attorney fees, that it incurred while defending itself in the arbitration proceedings regarding the reassignment of the teacher. The union is likely to file exceptions to this recommendation but, if the MERC affirms it, its decision will serve as a further deterrent to unions wishing to process grievances regarding prohibited subjects to arbitration.

The Clark Hill Education Law Group will continue to follow developments in this case and provide updates.  In the meantime, if you have any questions on this issue please call your Clark Hill Education Law attorney.