Latest MERC Decision on Teacher Discipline Language in Contracts

Kacie Kefgen

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

DashBoard, Jan. 17, 2018

As districts are preparing to bargain new labor contracts for the coming negotiation season, there is a recent Michigan Employment Relations Commission decision that is important to highlight. In November, MERC issued their decision and order that dismissed the unfair labor practice charges that Waverly Community Schools and the Waverly Education Association, Michigan Education Association/National Education Association filed against each other and later both withdrew. However, MERC also published the decision and order earlier issued by the Administrative Law Judge, which found for the district in part and for the union in part.

The published decision and order helps add to our body of knowledge about how MERC views several common bargaining issues—teacher discipline language in contracts, district latitude in setting a calendar without an agreement and health savings account contribution obligations after contract expiration.

Over the next three weeks, DashBoard articles will summarize the issues covered in this ALJ opinion so that you can be well-prepared to address these issues if they come up in your negotiations. The language that was found to be prohibited in this case is similar to language that I have seen in a number of CBAs over the last year.

Teacher Discipline Language and Prohibited Subjects of Bargaining

One of the issues that districts and unions may not legally bargain over or include in CBAs is teacher discipline, including, “. . . development, content, standards, procedures, adoption, and implementation of a policy regarding discharge or discipline of [a teacher] . . .” (MCL 423.215)

The expired contract in this case included language that the district argued constituted a prohibited subject of bargaining:

The teacher or specialist shall, upon request, have the right to Association representation during any such investigation. Warnings and reprimands related to a teacher or specialist’s performance or assigned duties shall be discussed privately between the teacher or specialist and principal except when either party requests the presence of an Association representative and/or bargaining unit representative of his/her choice. Neither party shall delay discussion more than two (2) school days from the date initially requested by administration except by mutual consent.

For Article 5.11, above, the ALJ concluded that it addressed a PSB because it outlines the procedure that the district must follow before disciplining a teacher. The contract language also included:

B. Any parent/guardian having a complaint against a teacher and who has not lodged his/her complaint with the teacher, when appropriate, shall be referred to the teacher by the principal.

C. Any parent/guardian who has not lodged his/her complaint with the teacher or principal shall be referred, when appropriate, to the principal by any other administrator who has been approached by that person with the complaint.

D. Any written or verbal complaint from a parent/guardian received by an administrator about a teacher or specialist or his/her job performance shall be called to the teacher or specialist’s attention within two (2) school days and prior to any disciplinary action being taken on the complaint. The teacher or specialist shall receive a copy of any written complaint. The validity of the complaint shall be investigated by the administrator. The teacher or specialist shall be given an opportunity to respond to the complaint (including, where appropriate, a meeting with the parent/guardian) before any disciplinary or other corrective action is taken.

For Article 5.12, above, the ALJ concluded that paragraphs B, C and D addressed a prohibited subject of bargaining because they outline the procedure that the district must follow before disciplining a teacher. It should be pointed out that the ALJ concluded that paragraphs B and C were found to address a PSB even though those paragraphs do not explicitly mention discipline.

In this case, the district had identified the CBA language above as language it believed constituted a PSB, but the union continued to propose to maintain the language in the new contract and did not initiate a discussion about how the language could be modified to avoid the prohibited subject problem. The ALJ stated that the burden was on the union to initiate that discussion and not doing so while continuing to propose the expired language constituted an Unfair Labor Practice.

As you go through your current contract to prepare for the upcoming bargaining season, look to see whether it includes text similar to the prohibited language above. If you have questions about your contract language, please contact your district’s legal counsel or the Legal Team here at MASB. Also consider attending our Labor Relations Conference on Feb. 9, 2018, in Lansing to prepare yourself to bargain this year.

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