Michigan Court of Appeals: Insisting on Including Prohibited Language in CBA is Bargaining in Bad Faith

Brad Banasik

By Brad Banasik, MASB Legal Counsel/Director of Labor Relations & Policy

DashBoard, Jan. 27, 2016

The Michigan Court of Appeals recently issued a published decision that cleared up any possible lingering issues about including prohibited subjects of bargaining in a collective bargaining agreement. In the case Calhoun Intermediate Education Association MEA/NEA v. Calhoun Intermediate School District, the Michigan Court of Appeals made it clear that a union may not insist as a condition of its agreement to a contract that a school district agree to include provisions pertaining to a prohibited subject. This would include, for example, the suggestion of moving the disputed provisions to an appendix.

Additionally, the Court affirmed that a union violates its duty to bargain in good faith, and obstructs and impedes the bargaining process when it continues to make proposals dealing with prohibited subjects after an employer refuses to bargain over the proposals.

In this case, the district clearly indicated that it would not negotiate prohibited subjects of bargaining by including the following statement in a proposal to the union:

Nothing in this proposal should be regarded as indicating that the Board of Education proposes or otherwise intends to continue any provisions of the. . . Master Agreement which pertain to prohibited subjects of bargaining in the successor collective bargaining agreement to the extent that such provisions pertain to prohibited subjects of bargaining. Further, the. . .Association is hereby notified that the Board of Education will not enter into or execute any successor collective bargaining agreement. . .which contains provisions embodying or pertaining to any prohibited subject of bargaining. . .

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The union, however, responded that the language could not be removed without bargaining and that it would not bargain over prohibited subjects. It then submitted a proposal that indicated the provisions governing prohibited subjects of bargaining had been removed from the contract, but were included in a letter of agreement as an appendix that provided that the language would be moved back into the contract if laws on the prohibited subjects were found to be invalid, repealed or modified by the Legislature.

After the union ignored additional warnings about negotiating the prohibited subjects, the district filed an Unfair Labor Practice charge, claiming that it was a violation of the Public Employment Relations Act to insist on including unenforceable language in a successor contract. The Michigan Employment Relations Commission upheld the charge and ordered the union to cease and desist from making proposals involving the prohibited subjects of bargaining. The union then appealed this decision to the Michigan Court of Appeals.

In reaching its decision to affirm the MERC decision, the Court of Appeals noted that the union was free to “discuss” the prohibited subjects of bargaining, but once the district made it clear that the successor contract wouldn’t include the unenforceable provisions, the union violated its duty to bargain in good faith by continuing to make proposals dealing with the prohibited subjects.

Thus, to avoid any confusion about negotiating prohibited subjects of bargaining with the union, a school district should clearly and unambiguously indicate its unwillingness to bargain over them.

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