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MERC: Union’s Actions on Prohibited Subjects Simply an Attempt to Delay and Obfuscate Bargaining

Kacie Kefgen

By Kacie Kefgen, MASB Assistant Director of Labor Relations and Legal Services

DashBoard, Jan. 21, 2015

In a newly released opinion and order, MERC ruled in favor of Ionia Public Schools in a case that asked the commissioners to decide a handful of disagreements about the impact of the 2011 PERA changes, and which added a number of prohibited subjects of bargaining. These additions included teacher assignment, layoff and recall, teacher discipline, evaluation systems and more.

The Ionia Education Association (Union) argued that provisions addressing prohibited subjects of bargaining in the expired contract should automatically be included in successor agreements since it would be illegal for the parties to negotiate them out as a result of the changes to MCL 423.215 (PERA). MERC disagreed, concluding, “There is no factual or legal basis to support the Union’s position that provisions in the expired contract must carry over to the successor agreement.” Furthermore, the commissioners reiterated their position in an earlier Calhoun Intermediate Education Association case that no provision regarding a prohibited subject could be included in a collective bargaining agreement (CBA) without negotiating it. If the parties may not bargain over a provision, they may not include it in a CBA.

Notably, MERC distinguished between parties discussing prohibited subjects and bargaining over prohibited subjects. Simply discussing a prohibited subject, especially discussing whether a particular provision in an expired contract covers a prohibited subject, is permissible. The commissioners went so far as to question whether the Union was bargaining in good faith when it refused to discuss which old provisions in the contract were prohibited subjects and which were not.

MERC further explained that when “a public school employer has clearly and unambiguously indicated its unwillingness to bargain over prohibited subjects of bargaining [teacher assignment, layoff, recall, etc.], . . . it is a breach of the duty to bargain in good faith for a union to demand bargaining on those subjects.” In making the inclusion of old contract provisions a condition to reaching an agreement, the union “obstructed and impeded the bargaining process and violated the Union’s duty to bargain in good faith.”

Key Takeaways:

  • Districts and unions develop a common understanding about whether old contract provisions address prohibited subjects of bargaining.
  • Districts should not negotiate over prohibited subjects of bargaining.
  • Districts should not agree to contracts with prohibited subjects of bargaining.
  • If a union insists on bargaining a prohibited subject or including one in the next CBA, it may be violating its duty to bargain in good faith.

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